GEORGETOWN UNIVERSITY LAW LIBRARY

N.

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,

J
ANTHONY D’AMATO
ARTHUR J. JACOBSON

JUSTICE
AND THE
LEGAL
SYSTEM
A COURSEBOOK
 1

» ‘
Justice and the Legal System
 ANDERSON’S
Law School Publications

APPELLATE ADVOCACY: PRINCIPLES AND PRACTICE

Cases and Materials
by Ursula Bentele and Eve Cary
CASES AND PROBLEMS IN CRIMINAL LAW
by Myron Moskovitz
A CONTRACTS ANTHOLOGY
by Peter Linzer
CRIMINAL LAW: CASES AND MATERIALS
by Arnold H. Loewy

EFEECTIVE INTERVIEWING
by Fred. E. Jandt
ENDING IT: DISPUTE RESOLUTION IN AMERICA
Descriptions, Examples, Cases and Questions
by Susan M. Leeson and Bryan M. Johnston
ENERGY LAW AND POLICY
by Joseph P. Tomain and James E. Hickey, Jr. with Sheila S. Hollis
ENVIRONMENTAL LAW
by Jackson B. Battle and Mark Squillace
FEDERAL RULES OF EVIDENCE
Rules, Legislative History, Commentary and Authority
by Glen Weissenberger
HARD ROCK MINING
by Michael Braunstein

INTERNATIONAL HUMAN RIGHTS: LAW, POLICY AND PROCESS

Problems and Materials
by Frank Newman and David Weissbrodt

INTRODUCTION TO THE STUDY OF LAW: CASES AND MATERIALS

by John Makdisi
JUSTICE AND THE LEGAL SYSTEM
A Coursebook

by Anthony D’ Amato and Arthur J. Jacobson

THE LAW OF DEFAMATION, PRIVACY, PUBLICITY AND “MORAL RIGHTS”

Cases and Materials on Protection of Personality Interests
by Sheldon W. Halpern

LEGAL RESEARCH, WRITING AND ADVOCACY, SECOND EDITION

by Welsey Gilmer, Jr.

PATIENTS, PSYCHIATRISTS AND LAWYERS

Law and the Mental Health System
by Raymond L. Spring, Roy B. Lacoursiere, M.D., and Glen Weissenberger
PROBLEMS AND SIMULATIONS IN EVIDENCE
by Thomas F. Guernsey
SPORTS LAW: CASES AND MATERIALS
by Raymond L. Yasser, James R. McCurdy and C. Peter Goplerud
TRIAL PRACTICE
Text by Lawrence A. Dubin and Thomas F. Guernsey
Problems and Case biles with Video Presentation
by Edward R. Stein and Lawrence A. Dubin
Justice and the Legal
by Systew
A COURSEBOOK

ANTHONY D’AMATO
Judd & Mary Morris Leighton
Professor of Law, Northwestern University

and

ARTHUR J. JACOBSON

Max Freund Professor of Litigation and Advocacy,

Benjamin N. Cardozo School of Law, Yeshiva University

CINCINNATI
ANDERSON PUBLISHING CO.
 iVe dedicate this book
to

Norma D’ Amato Kraus,

always cheerful through the long, debilitating pain;
to

Harold Jacobson, and to the memory of Ruth Jacobson, loving parents.

D’Amato & Jacobson, Justice and the Legal System: A Coursebook

© 1992 by Anderson Publishing Co.

All rights reserved. No part of this book may be reproduced in any form or by
any electronic or
mechanical means including information storage and retrieval systems without permissio
from the publisher. n in writing

Library of Congress Cataloging-in-Publication Data

D’Amato, Anthony A.
Justice and the legal system : a coursebook / by Anthony D’Amato
and Arthur J. Jacobson
p. cm.
Includes bibliographical references.
ISBN 0-87084-447-4
1. Justice, Administration of— United States. 2. Justice
Admini,stration of— United States— Case.s— Cases. 3. Justice. I. Jacobson,
Arthur J. 11. Title.
KF386.D28 1992
347.73— dc20
91-39634
[347.307]
CIP
 Contents

Table of Cases xi
Preface xiii
Acknowledgments xvii
Introduction xxi

CHAPTER 1 What Is Justice?

1.1 Property, Friendship and Power

Plato, The Republic 1
Notes and Questions 3

1.2 Distributive and corrective justice

Smith, A Theory of Moral Sentiments 10
Kelsen, What Is Justice? II
Kelsen, General Theory of Law and State 12
Questions 12
Aristotle, Nicomachean Ethics 13
Posner, The Concept of Corrective Justice in Recent Theories of
Tort Law 14
Questions 15
Miller, Social Justice 17
Questions 18
Hayek, Law, Legislation, and Liberty 19

1.3 Vengeance
Jacoby, Wild Justice 21
Payne v. Tennessee 21
Questions 22

1.4 Lawyering and justice

Kelsen, What Is Justice? 23
Luban, Some Greek Trials: Order and Justice in Homer, Hesiod,
Aeschylus and Plato 24
Questions 25
CONTENTS

CHAPTER 1 — concluded

Mill, Utilitarianism 26
D’Amato, Rethinking Legal Education 26
Questions 28

CHAPTER 2 A Fair Jury

2.1 Improper argument 29

Rojas V. Richardson 30
Rojas V. Richardson (Rehearing) 35
Federal Rules of Evidence, Rules 401-403 36
Notes and Questions 36
Comment on Procedural Justice, Queues and Lotteries 40
Altschuler, Courtroom Misconduct by Prosecutors and Trial Judges
41
Notes and Questions 42

2.2 Truths we don’t want jurors to hear (mostly about defendants)

Questions 46
Jessup V. Davis 47
Fielding v. Publix Cars 50
Notes and Questions 57
Brown v. Walter 52
Smith V. Raup 53
Questions 54
King V. Starr 55
Hoover v. Gregory 57
Questions 58
Federal Rules of Evidence, Rule 411 59
Question 59

2.3 Truths we don’t want jurors to hear (about accusers)

United States v. Kasto 59
Notes and Questions 62
Federal Rules of Evidence, Rule 412 63
Questions 64
Comment on the Federal Rules of Evidence and the Liberal Theory
of Justice 65

2.4 The composition of juries 67

Acker, Exercising Peremptory Challenges After Batson 68

Notes and Questions 69
United States v. Dougherty 71
Moot Court Exercise 78
Firmage, Religion and the Law: The Mormon Experience in the
Nineteenth Century 80
 CONTENTS vll

CHAPTER 1— concluded

United States v. Reynolds 81

Reynolds v. United States 81
Notes and Questions 82
Concluding Questions 84

CHAPTER 3 A Fair Judge

3.1 Do judges ever decide “according to law’’?

Hutcheson, The Judgment Intuitive: The Function of the “Hunch”

in Judicial Decision 87
Frank, What Courts Do in Fact 90
Cohen, Transcendental Nonsense and the Functional Approach 91
Frank, Law and the Modern Mind 92
Notes and Questions 92

3.2 Judicial bias: Framework

Berger v. United States 94
Notes and Questions 100
Leubsdorf, Theories of Judging and Judge Disqualification 102
In re J.R Linahan 104
Notes and Questions 107
Federal Statutes on Judicial Bias 108
Notes and Questions 110

3.3 Judicial bias: Applications

United States v. Fiat Motors
Background 111
HI
Oral Arguments
Opinion 116
119
Notes and Questions
United States v. Holland 119
122
Notes and Questions
“60 Minutes,’’ Justice for Sale.
126
Notes and Questions
United States v. Murphy 128
Lubet, Judicial Impropriety and Reversible Error 136
Notes and Questions 137

3.4 Judicial partiality toward substantive law

Devlin, The Enforcement of Morals 000
Questions 144
Frank, Law and the Modern Mind 145
Aldisert, Philosophy, Jurisprudence, and Jurisprudential Temperament
of Eederal Judges 146
viii CONTENTS

CHAPTER 3 — concluded

Mills V. Wyman 147

Fish, Doing What Comes Naturally 148
Concluding Questions 150

CHAPTER 4 Group Justice versus Individual Justice: Category Problems

McFarland v. Smith 151
Notes and Questions 157
Comment on Justice and Common Sense 160
People V. Thomas 163
Notes and Questions 165
Exercise 169

CHAPTER 5 Group Justice Versus Individual Justice: Equality Problems

5.1 Should group justice trump individual justice?

Regents of the University of California v. Bakke

Syllabus 175
Oral Arguments 176
Opinion 186
Notes and Questions 197

5.2 Should individual justice trump group justice?

City of Los Angeles Department of Water and Power v. Manhart 199

Notes and Questions 203
Classroom Dialogue 206
Westen, The Empty Idea of Equality 211
D’ Amato, Is Equality a Totally Empty Idea? 214
5.3 The claim to be treated as a group
Veatch, The Eoundations of Justice: Why the Retarded and the Rest
of Us Have Claims to Equality 216
Plato, The Republic 217
Note 218
Nagel, Equal Treatment and Compensatory Discrimination 218
Questions 219
Hayek, Law, Legislation and Liberty 221
Questions 222
Lyons, The New Indian Claims and Original Rights to Land 222
Question 227
Bittker, The Case for Black Reparations 227
Questions 230
CHAPTER 6 Individualized Justice

6.1 Doing justice through law: The separation thesis

Moskowitz, The Prediction Theory of Law 231
Notes and Questions 232
Comment on Normative Statements, Morality and Law 233
Exercise 233
In the Interest of Alice and Betty S. 242
Notes and Questions 246
Comment on Judges and Justice Arguments 248

6.2 Doing justice apart from law: The heritage of equity

Holdsworth, A History of English Law 249
Baker, An Introduction to English Legal History 250
Edwards v. Allouez Mining Co. 252
Notes and Questions 254
McCune v. Brown 256
Questions 257

6.3 Doing justice under the merger of law and equity

Emmerglick, A Century of the New Equity 258
Goldsmith v. Goldsmith 259
Questions 261
Sharp V. Kosmalski 261
Questions 264
Simonds v. Simonds 265
Questions 268

CHAPTER 7 Justice at the Intersection of Law and Procedure

7.1 Prospectivity
Great Northern Ry. Co. v. Sunburst Oil & Refining Co. 271
Notes and Questions 275
Exercise 276
City of Fairbanks v. Schaible 282
Questions 284
Scheele v. City of Anchorage 284
Notes and Questions 285
Exercise 287
Trans-Ephemeral Ry. v. Moonburst 289
Notes and Questions 291

7.2 Retroactivity
Linkletter v. Walker 291
Questions 298
Desist V. United States 298
X CONTENTS

CHAPTER 7 — concluded

Questions 302
Griffith v. Kentucky 303
Notes and Questions 307

CHAPTER 8 Justice on Trial

United States v. Alstoetter 311
The Katzenberger Case 312
Opening Statement on Behalf of Defendant Rothaug 318
Refusal by a School Child to Give the German Salute 319
Opinion of the Reich Minister of Justice 320

Editors’ Digression: What Was Happening in the United States 320

Newspaper Report of the Katzenberger Trial 321
Extracts from the Testimony of Defendant Rothaug:
Direct Examination 321
Final Statements of the Defendants 325
Opinion and Judgment of the Military Tribunal 326
Comment: Under What Law Was Judge Rothaug Convicted? 328
Questions 331
 Table of Cases

Alice and Betty S., In the Interest of, 242

American Trucking Associations, Inc. v. Smith, 309

Batson v. Kentucky, 68
Berger v. United States, 94
Brown v. Walter, 52

Darden v. Wainwright, 43
Desist V. United States, 298

Edwards v. Allouez Mining Co., 252

Fairbanks, City of, v. Schaible, 282

Fielding v. Publix Cars, 50

Goldsmith v. Goldsmith, 259

Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 271
Griffith v. Kentucky, 303

Hoover v. Gregory, 57

International Business Machines Corp., In re, 108

Jessup V. Davis, 47
J.P. Linahan, In re, 104

Katzenberger Case, 312

King V. Starr, 55

Linkletter v. Walker, 291

Los Angeles Department of Water and Power v. Manhart, 199, 307

McCune v. Brown, 256

McFarland v. Smith, 151
Mills V. Wyman, 147

Payne v. Tennessee, 21
TABLE OF CASES

People V. Thomas, 163

Price Brothers Co. v. Philadelphia Gear Corp., 107

Read v. United States, 45

Regents of the University of California v. Bakke, 186
Reynolds v. United States, 81
Rojas V. Richardson (Rojas I), 30
Rojas V. Richardson (Rojas II), 35

Scheele v. City of Anchorage, 284

Sharp V. Kosmalski, 261
Simonds v. Simonds, 265
Smith V. Raup, 53

Teague v. Lane, 309

United States v. Alstoetter, 311

V. Dougherty, 71

V. Fiat Motors, 116

V. Holland, 119

V. Kasto, 59

V. Murphy, 128

V. Reynolds, 81
V. Will, 111
 xiii

Preface

This new coursebook is designed for a one-semester law school course for students at
any level. For the first-year curriculum, Justice and the Legal System may serve as a text
for existing courses in Introduction to Law, Legal Method, Legal Process, The Legal System,
and Elements of Law, or any other introductory course. We have taught these materials in
such “slots.” In upper levels the coursebook may serve as a text for courses in Jurisprudence,
Legal Philosophy, and related courses. It could also be used as an in-class text for externship
or clinical courses. An especially desirable combination would be to offer Justice and the
Legal System in the fall semester and Legal Ethics or Professional Responsibility in the
spring semester. The present coursebook introduces some questions of judicial ethics that
may serve as a springboard to the required course in professional ethics.

We focus on justice; more precisely, we study and examine lawyers’ arguments about
justice. Several decades ago, law professors were heard in class to dismiss any discussion
about justice or fairness as “irrelevant” to legal thinking. One famous professor’s answer
to a student’s question whether a decision was just, was “If it’s justice you’re looking for,
you should have gone to divinity school.” Fortunately, these attitudes no longer obtain.
Justice considerations are more and more the subject of discussion in every law-school
classroom. The present coursebook can be viewed simply as a way of putting those con¬
siderations together in one relatively coherent and relatively comprehensive package. We
attempt to fill a gap in the law-school curriculum that is no longer controversial — the need
for direct and focused examination of arguments about fairness and justice.
We have collected a host of varied and provocative teaching materials. We use transcripts
of oral arguments; we use cases that quote extensively from trial-court transcripts; we use
materials from foreign legal systems such as the Nuremberg judgment; we even include the
transcript of a classroom dialogue when we onee co-taught this course at the Cardozo School
of Law. We present numerous questions to ehallenge the intellect and help students to learn
to think effectively about the normative arguments that win cases. We focus much more
on the litigation process at the pre-trial and trial stages than upon appellate court opinions.
We believe that law is designed to solve real-life problems, and hence we steer away from
doctrinal discussion. Although our subject-matter ranges over the entire curriculum, we do
not attempt to instruct the student in any particular legal subjects.
We are not unmindful of the claim that justice eannot be taught because it is so elusive,
or because in a pluralist society there are so many versions of justice. Indeed, these competing
views of justice can be found throughout the materials in this coursebook. These competing
views of justice must be addressed on their merits. An attorney is an advocate; just because
PREFACE

one side has made a claim about justice is no reason for the other
side to give up and be
silent. Our point is that a law student should be conversant with various
ways of thinking
about justice in order to effectively answer — or introduce — a claim based
on justice.
A judge will invariably have his or her own vision of justice. A judge
will try to be
just. Surely it is part of the professional responsibility of a well-trained advocate
to address,
and even help shape, the judge s concern for doing what is fair and just. Justice
arguments
are as much a stock in trade of the good lawyer as legal arguments.
However, focusing upon justice as part of the lawyer’s stock in trade does not ensure
that justice can work for any client irrespective of the merits of his or her case.
Rather, if
the client s situation is unjust (and the client will probably know this as well
as the attorney),
the good lawyer should whenever possible offer to assist the client in settling or
dropping
the case. But by the same token, the good attorney should never refuse to take on
a just
case that appears legally hopeless. The real test of lawyering is to help a client win who
ought to win, even if the law seems hopelessly stacked against that client.
But above and beyond advocacy, justice as an intellectual matter animates all law in
all legal systems. One cannot understand law without understanding where its normative
power comes from. All persuasive legal argumentation turns out, upon inspection, to be
structured upon perceived commonalities of justice and fairness. The relation between law
and justice is never either/or. Rather, law bereft of justice is only words — words on paper
that lack a sense of conviction.
This coursebook reflects our belief that the role of the law-school professor is to teach
students how to teach themselves the law. Each student bears the primary responsibility for
his or her own legal education — an education in law that starts in law school and never
stops thereafter. Law school is simply an initiation into self-training in the law that continues
unabated in the productive life of any lawyer after law school — in judicial clerkships, pro
bono practice, law firm apprenticeship and eventually partnership, law teaching, government
work, or any of the other myriad careers and opportunities to do justice that the law
provides. The first year of law school, from this point of view, is just the initial context
in which students are actually engaging in legal practice. We believe that law-school education
itself constitutes a rudimentary practice.
Learning is best when it is fun. Indeed, the fun of learning is the most important
motivation to learn. Of all the many classes we have taught in law school, neither of us
have ever had as rewarding an experience as we have experienced in our classes on Justice
and the Legal System. Even though we have used xeroxed materials that underwent constant
revision as we distributed them — and hoped for the day when we would see this coursebook
published — our students have understood our project and have been superbly patient. Many
students have contributed newspaper clippings and references that have found their way in
some form or other into this coursebook. We have hardly ever had a class when all the
students left the room at the end of the hour; invariably, a group of students remains,
arguing and continuing the dialogue among themselves. The arguments are sometimes heated
but always cordial. We have found, simply, that law students love to argue about justice.
We have omitted ellipses and many footnotes from cases and quoted materials in order
to avoid unnecessary distractions. The scholar who may use this book should, of course,
consult original texts.
 PREFACE XV

The book could not have been completed without assistance from several endowments:
the Perkins-Bauer Teaching Professorship at Northwestern University, and the Stanford
Clinton Sr. Research Professorship at Northwestern University. Nor could the book have
been completed without the invitation by Dean Monroe Price of the Cardozo School of
Law for us to co-teach the new Justice course during a visit to Cardozo in the Fall of 1986.
We would like to thank Joni Corn and David Katz, students at the Cardozo School
of Law, for their indefatigable research assistance, and Jerry Ritthaler at Northwestern for
his superb administrative help. Professor Stewart Sterk of the Cardozo School of Law gave
us precious guidance on Chapter 6. We would also like to thank the students at the Cardozo
School of Law and Northwestern Law School who have used and helped us shape the
materials that now assume printed form. We hope that the joy we have experienced in trying
to persuade them, and in turn being persuaded by them, blooms through the printed words.
 Acknowledgments

We appreciate the permission of the following authors, periodicals, and publishers to

reprint excerpts from their publications;

James A. Acker, Exercising Peremptory Challenges After Batson. Reproduced with

permission from 24 Criminal Law Bulletin 187 (May-June 1988). Warren, Gorham &
Lamont, Inc., 210 South Street, Boston, MA 02111. Copyright 1988. All rights reserved.
Ruggiero J. Aldisert, Philosophy, Jurisprudence and Jurisprudential Temperament, 20
Indiana L. Rev. 453 (1987). Excerpt reprinted with permission of the Trustees of Indiana
University.
Albert W. Altschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Texas
L. Rev. 629 (1972). Excerpt reprinted with permission of the publisher.
Aristotle, Nicomachean Ethics (W.D. Ross trans.), Oxford, 1941: Oxford University
Press. Excerpts reprinted with permission of the publisher.
John H. Baker, An Introduction to English Legal History (2d ed.), London, 1979:
Butterworths. Excerpts reprinted with permission of the publisher.
Boris 1. Bittker, The Case for Black Reparations, New York, 1973: Random House.
Excerpts reprinted with permission of the author.
Zechariah Chafee, Jr., Some Problems of Equity (Thomas M. Cooley Lecture Series),
Ann Arbor, 1950: University of Michigan Law School. Excerpt reprinted with permission
of the publisher.
Felix Cohen, Transcendental Nonsense and the Eunctional Approach. Copyright ©
1935 by the Directors of the Columbia Law Review Association, Inc. All Rights Reserved.
This article originally appeared at 35 Colum. L. Rev. 809 (1935). Reprinted by permission.

Anthony A. D’Amato, Is Equality a Totally Empty Idea?, 81 Mich. L. Rev. 600 (1983).
Excerpt reprinted with permission of the publisher.

Anthony A. D’Amato, Rethinking Legal Education, 74 Marquette L. Rev. 1 (1991).

Excerpts reprinted with permission of the publisher.
Patrick Devlin, The Enforcement of Morals, Oxford, 1965: Oxford University Press.
Excerpts reprinted with permission of the publisher.
William F, Duker, A Constitutional History of Habeas Corpus, Westport, 1980: Green¬
wood Press. Excerpt reprinted with the permission of the publisher.
Leonard Emmerglick, A Century of the New Equity, 23 Texas L. Rev. 244 (1945).
Excerpt reprinted with permission of the publisher.
Edwin B. Firmage, Religion and the Law, 12 Cardozo L. Rev. 765 (1991). Excerpt
reprinted with permission of the author and the publisher.
xwiii ACKNOWLEDGMENTS

Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of
Theory in Literary and Legal Studies, Durham, 1989: Duke University Press. Excerpt
reprinted with permission of the author and the publisher.
Jerome Frank, What Courts Do in Fact, 26 Ill. L. Rev. (Northwestern University School
of Law) 645 (1932). Excerpt reprinted with permission of the publisher.
Thomas A. Green, Verdict According to Conscience, Chicago, 1985: University of
Chicago Press. Excerpt reprinted with permission of the author and the publisher.
Friedrich A. Hayek, Law, Legislation and Liberty, Vol. 2: The Mirage of Social Justice,
Chicago, 1976: University of Chicago Press. Excerpts reprinted with permission of the
author and the publisher.
Joseph Hutcheson, Jr., The Judgment Intuitive, 14 Cornell L.Q. 274 (1929). Excerpts
reprinted with permission of the publisher.
Susan Jacoby, Wild Justice, New York, 1983: HarperCollins Publishers. Excerpt
reprinted with permission of the publisher.
M. Janofsky with Peter Alfano, System Accused of Failing Test Posed by Drugs,
November 17, 1988, p. 1, copyright © 1988 by The New York Times. Excerpt reprinted
with permission of the publisher.
Hans, Kelsen, General Theory of Law and State. Reprinted by permission of the
publishers from General Theory of Law and State by Hans Kelsen, Cambridge, Mass.:
Harvard University Press, copyright © 1945 by the President and Fellows of Harvard
College.
Hans Kelsen, What is Justice? Berkeley, 1957: The University of California Press.
Excerpts reprinted with permission of the publisher.
John Leubsdorf, Theories of Judging and Judge Disqualification, 62 N.Y.U. L. Rev.
237 (1987). Excerpt reprinted with permission of the publisher.
David J. Luban, Some Greek Trials: Order and Justice in Homer, Hesiod, Aeschylus
and Plato. The full text of this article appears at 54 Tennessee L. Rev. 279 (1987) and is
excerpted by permission of the author and the Tennessee Law Review Association, Inc.
Steven Lubet, Judicial Impropriety and Reversible Error, 3 Crim. Justice 26 (1988),
American Bar Association Section of Criminal Justice. Excerpt reprinted with permission
of the author.
David B. Lyons, The New Indian Claims and Original Rights to Land, Social Theory
and Practice, Vol. 4, No. 3 (1977): Department of Philosophy, Florida State University.
Excerpts reprinted with permission of the author.
David Miller, Social Justice, Oxford, 1976: Oxford University Press. Excerpts reprinted
with permission of the publisher.
David Moskowitz, The Prediction Theory of Law, 39 Temple L. Q. 413 (1966). Excerpt
reprinted with permission of the publisher.
Thomas Nagel, Equal Treatment and Compensatory Discrimination, 2 Philosophy and
Public Affairs 357 (1973): Princeton University Press. Excerpt reprinted with permission
of the publisher.
Chaim Perelman, The Idea of Justice and the Problem of Argument (J. Petrie trans.),
London, 1944: Allen & Unwin (Routledge Chapman & Hall). Excerpt reprinted with per¬
mission of the publisher.
 ACKNOWLEDGMENTS xlx

Plato, The Republic Bloom trans.), New York, 1968: Basic Books (HarperCollins
Publishers. Excerpts reprinted with permission of the publisher.
Karl Popper, The Open Society and Its Enemies, Vol. 1: The Spell of Plato (5th rev.
ed.), Princeton, 1966: Princeton University Press. Excerpt reprinted with permission of the
publisher.
Richard A. Posner, The Concepf of Corrective Justice in Recent Theories of Tort Law,
10 J. Legal Studies 187 (1981): University of Chicago Press. Excerpt reprinted with per¬
mission of the author and the publisher.
John Rawls, A Theory of Justice. Reprinted by permission of the publishers from A
Theory of Justice by John Rawls, Cambridge, Mass.: Harvard University Press, copyright
© 1971 by the President and Fellows of Harvard College.
Sixty Minutes, December 6, 1987, Justice For Sale? CBS News. Excerpts reprinted with
permission of CBS.
Robert M. Veatch, The Foundations of Justice: Why the Retarded and the Rest of Us
Have Claims to Equality, New York, 1986: Oxford University Press. Excerpts reprinted with
permission of the author and the publisher.
Peter Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537 (1982). Excerpts
reprinted with permission of the publisher.
t
1
 Introduction

Like any other law-school coursebook, the book you are holding in your hands has
lots of cases in it. Cases and problems from the lives of real people caught up in a conflict
situation. We will look at these cases from the perspective of justice.
When we do so, we soon realize — like Moliere’s character who realized that all his life
he was speaking “prose” — that every case is a case about justice. Not just the cases in this
book, but every case in every law book. Not all cases will precisely articulate the conception
of justice that made a difference in the decision that was reached, but justice arguments
were there anyway — in the background when not in the foreground.
But if cases are not always articulate about justice, good lawyers must always be. A
lawyer cannot be effective in practice today without knowing what kinds of arguments to
make to support claims of fairness and justice. Law schools can no longer afford the
indifference that Harold Berman reminds us was their attitude decades ago:’
Oliver Wendell Holmes, Jr., once said: “I hate justice, which means that I know if a
man begins to talk about that, for one reason or another he is shirking thinking in legal
terms.”* It was in those days that a Harvard Law School student asked in class, “But sir,
is that just?” and the professor replied, “If it’s justice you’re looking for, you should have
gone to divinity school!”

But today’s practicing lawyer would make as grave an argumentative error to ignore justice
considerations as a lawyer decades ago would have made to emphasize such considerations
in front of a judge such as Justice Holmes.
We believe that this new course on Justice and the Legal System may help in actualizing
a lifelong perspective that justice, after all, is what law is all about. Not simply doing
justice, though that is of immense importance, but also arguing about justice. The most
important task of a lawyer — the thing he or she can do best of all — is to articulate and
present as powerfully as possible the justice of the client’s position.* The lawyer must appeal

1 Berman, Toward an Integrative Jurisprudence: Politics, Morality, History, 76 Cal. L. Rev. 779, 784 (1988).
2 O.W. Holmes, His Book Notices and Uncollected Letters and Papers 201 (H. Shriver ed. 1936).
3 If the client’s position appears to be unjust, a good attorney will work with that client to modify the position
such as making a bona fide offer of settlement to the other side. Often, however, further investigation of the
client’s position will reveal that the client acted out of his or her own sense of justice. Such further investigation
may prove to be the decisive factor in structuring a legal argument that will present the client’s fact situation in
terms of societal fairness and justice that may appeal to the judge or decisionmaker.
xxii INTRODUCTION

to the sense of fairness of the tribunal that is charged with passing upon the merits of the
client’s case. If the client can be shown to deserve to win the argument, then the lawyer’s
job is nearly finished. What remains is the presentation of a justificatory legal argument.
Even then, the degree of persuasiveness of the legal argument overtly or covertly derives
from the soundness of its foundation in the justice of the client’s cause.
We are not saying that arguments about law are unimportant compared to arguments
about justice. Far from it. A naked appeal to justice in the course of an argument or
negotiation is almost always a tip-off to the decisionmaker that the arguer is resorting to
“justice” to get around what the law clearly demands. The frank, even if heartfelt, appeal
to justice alone is often a losing strategy — this is the “lesson” of the previous quotation
from Oliver Wendell Holmes. Rather, the attorney must show that the client’s position is
just and right within the law properly interpreted. The present course on Justice and the
Legal System is addressed primarily to accomplishing this task. The materials you will be
reading involve the intersection of justice and law. You will find that justice is not something
apart from the law; rather, justice informs the law.
We offer this new course to you in the faith that you share with us the intellectual
challenge and excitement that comes from examining the deepest foundations of the legal
system and attempting to put into words the sense of justice that we all have and that we
dedicate our professional lives toward helping to achieve.

Anthony D’Amato
Arthur Jacobson
 1

What Is Justice?
CHAPTER ONE

1.1 Property, friendship and power

The Republic'
Plato

SOCRATES. Shall we simply assert that [justice] is the truth and giving back what a man
has taken from another, or is to do these very things sometimes just and sometimes unjust?
Take this case as an example of what I mean: everyone would surely say that if a man
takes weapons from a friend when the latter is of sound mind, and the friend demands
them back when he is mad, one shouldn’t give back such things, and the man who gave
them back would not be just, and moreover, one should not be willing to tell someone in
this state the whole truth.

CEPHALUS. What you say is right. . . .

THRASYMACHUS. I say that the just is nothing other than the advantage of the stronger.
Well, why don’t you praise me? But you won’t be willing.
SOCRATES. First I must learn what you mean. For, as it is, I don’t yet understand. You
say the just is the advantage of the stronger. Whatever do you mean by that, Thrasymachus?

THRASYMACHUS. Don’t you know that some cities are ruled tyrannically, some demo¬
cratically, and some aristocratically?
SOCRATES. Of course.

THRASYMACHUS. In each city, isn’t the ruling group master?

SOCRATES. Certainly.

THRASYMACHUS. And each ruling group sets down laws for its own advantage; a

1 The Republic of Plato, Book I, 331c-331d, 338c, 338d-340a (Allan Bloom trans. 1968). For the sake of
clarity, we have put the dialogue into direct discourse. [Editors]
JUSTICE AND THE LEGAL SYSTEM

democracy sets down democratic laws; a tyranny, tyrannic laws; and the others do the same.
And they declare that what they have set down — their own advantage — is just for the ruled,
and the man who departs from it they punish as a breaker of the law and a doer of unjust
deeds. This is what I mean: in every city the same thing is just, the advantage of the
established ruling body. It surely is master; so the man who reasons rightly concludes that
everywhere justice is the same thing, the advantage of the stronger.

SOCRATES. Now
I understand what you mean. Whether it is true or not I will try to find
out. Now, you too answer that the just is the advantageous, Thrasymachus — although you
forbade me to give that answer. Of course, “for the stronger” is added on to it.
THRASYMACHUS. A small addition, perhaps.

SOCRATES. It isn’t plain yet whether it’s a big one. But it is plain that we must consider
whether what you say is true. That must be considered, because, while I too agree that the
just is something of advantage, you add to it and assert that it’s the advantage of the
stronger, and I don’t know whether it’s so.
THRASYMACHUS. Go ahead and consider.

SOCRATES. That’s what I’m going to do. Now, tell me: don’t you say though that it’s
also just to obey the rulers?
THRASYMACHUS. I do.

SOCRATES. Are the rulers in their several cities infallible, or are they such as to make
mistakes too?

THRASYMACHUS. By all means, they certainly are such as to make mistakes too.

SOCRATES. When they put their hands to setting down laws, do they set some down
correctly and some incorrectly?

THRASYMACHUS. I suppose so.

SOCRATES. Is that law correct which sets down what is advantageous for themselves, and
that one incorrect which sets down what is disadvantageous? — Or, how do you mean it?
THRASYMACHUS. As you say.

SOCRATES. But whatever the rulers set down must be done by those who are ruled, and
this is the just?
THRASYMACHUS. Of course.

SOCRATES. Then, according to your argument, it’s just to do not only what is advantageous
for the stronger but also the opposite, what is disadvantageous.

THRASYMACHUS. What do you mean?

SOCRATES. What you mean, it seems to me. Let’s consider it better. Wasn’t it agreed that
the rulers, when they command the ruled to do something, sometimes completely mistake
what is best for themselves, while it is just for the ruled to do whatever the rulers command?
Weren’t these things agreed upon?
 Whut Is Justice? 3

THRASYMACHUS. 1 suppose so.

SOCRATES. Well, then, also suppose that you’re agreed that it is just to do what is
disadvantageous tor those who are the rulers and the stronger, when the rulers unwillingly
command what is bad for themselves, and you assert it is just to do what they have
commanded. In this case, most wise Thrasymachus, doesn’t it necessarily follow that it is.
just for the others to do the opposite of what you say? For the weaker are commanded to
do what is doubtless disadvantageous for the stronger.

POLEMARCHUS. Yes, by Zeus, Socrates, most clearly.

Notes and Questions

1. Cephalus is an old man. He is also a man of property. Socrates offers him a definition
of justice a property owner would appreciate: speaking the truth and giving back what one
takes. Property owners limit justice to matters like paying debts, not committing theft or
fraud. Children understand this idea of justice first, in the playground — don’t lie, don’t
take what’s mine. So Cephalus’ is the first idea of justice in the Republic.'^ Let us call it
justice as property.
2. Rousseau fashioned his own critique of Cephalus’ principle in the Discourse on the
Origin and Foundations of Inequality Among Men. He argues that property makes people
unequal, that being unequal causes them infinitely more misery than the happiness they get
from property:^
The first, who having enclosed a plot of land, presumed to say, this is mine, and
found people simple enough to believe it, was the true founder of civil society. What crimes,
what wars, what murders, what miseries and horrors would the human species have been
spared by one who, uprooting the stakes or filling in the ditch, had cried out to his fellows:
Defend yourselves from listening to this imposter; you are lost if you forget that the fruits
belong to all, and the earth to no one.
From the cultivation of land necessarily followed its partition; and from property, once
recognized, the first rules of justice. For in order to give each his own, everyone must be
able to have something.

Socrates too believes that inequality causes misery and turmoil. Cephalus’ idea of justice

2 “Kephalaios” means “head” or “chief.” See An Intermediate Greek-English Lexicon, Founded Upon
THE Seventh Edition of Liddell and Scott’s Greek-English Lexicon 430 (1889) (“Liddell and Scott”). The
definition Socrates offers Cephalus forms the “head” of the dialogue. Cephalus was the “head” of his family,
the owner of the family property.
Actually, Plato draws one picture of justice and one of injustice before Cephalus and Socrates join together
to define justice as property. These pictures are so primitive that we don’t even define them. The picture of justice
is respect for elders (Socrates speaks respectfully to Cephalus at the beginning of the dialogue. 328e.) Socrates’
talk with Cephalus shows the problem with this picture of justice; once we start dealing with elders on a level
footing, we can’t hold them in awe just because they are elders, as we did when we were children. The picture of
injustice is growing old and decrepit— more broadly, natural endowments and needs. 329a-d. The rest of the
dialogue deals intensively with these silent, omnipresent forces in human existence.
J.J. Rousseau, Oeuvres Completes, Tome 111, 164, 173 (1964). Translated by the editors.
 4 JUSTICE AND THE LEGAL SYSTEM

works, Socrates teaches, only when people are pretty well satisfied with their property, and
only when they ignore other obligations, such as those of citizens.

Socrates “takes back” from Cephalus the definition of justice he just gave him.
Cephalus himself, Socrates points out, does not ruthlessly treat justice as property. He
would not, for example, return property to a friend who would use it to hurt himself.
Cephalus leaves out from justice what everyone leaves out who stops at property: friends
and citizens.

3. In a portion of the dialogue we have omitted, Cephalus’ son and heir, Polemarchus,
intervenes at this point. Unlike his father, Polemarchus is willing to pursue more warlike

understand this idea of justice shortly after they understand justice as property, when they
begin to make friends. Let us call this conception justice as friendship.
In the next portion of the dialogue (which we have omitted), Socrates shows Polemarchus
why equating justice with friendship is insufficient. The physician does good to patients,
he says, not because they are friends, but because they pay him.® If physicians worked for
friendship, not for pay, then we should really have to fear them. Most people, after all,
are liable to make mistakes, to choose bad people as friends. To be truly just is to do good
for just people, because they are just and not because they are friends, and to do harm to
unjust people, because they are unjust, not because they are enemies. Friendship is irrelevant
to justice.
4. Now we meet Thrasymachus, whom Socrates describes as a “wild beast.”® He was
a teacher of rhetoric, a sophist. Professional rhetoricians in Athens wrote speeches for
enemies.'*
and litigants read to juries. Writing these speeches was the only *
political toarguments: “legal” task performed by
justice is doing good
paid specialists.^ Other than rhetoricians (whoto functioned only on this narrow task), Athens
friends and harm
had no professional cadre of lawyers. to
Children
Thrasymachus considers justice nothing but rhetoric, which rulers use to keep people
in order. Justice is the advantage® of the stronger. It is just the opposite of friendship: the
stronger call looking to their own advantage “justice,” where a friend calls looking to a
friend’s advantage “justice.”
To say that justice is the advantage of the stronger is to say there is no justice. This
is the point of view of the sophist. Thrasymachus introduces the sophist’s point of view

* The Polemarch was the third of nine archons, or chief magistrates, who presided in the court in which the
causes of metics were tried. Polemarchus’ father was a metic, a foreigner living in Athens as a guest. So Polemarchus
was a judge in the very court in which his father would have brought actions to defend his property. In earlier
times the Polemarch was the commander-in-chief of the army. See Liddell & Scott 653, definition of "poleii-
archos.”
* The same holds true for lawyers. For a different and much criticized view, see Fried, The Lawyer as Friend:
The Ethical Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976).
6 "Thrasos" means courage or boldness; in a bad sense— overboldness, rashness, audacity, impudence. See
Liddell & Scott 368.

And the propriety of even this limited function was in doubt. See R. Bonner & G. Smith, The Admin¬
istration OF .lUSTICE FROM HOMER TO ARISTOTLE II, ch. 2 (1938).

8 Other translators use the word “interest” for “advantage.” These words carry along with them very different
views of social life. Can you characterize the difference?
 What Is Justice? 5

into the discussion of justice. Let us call it justice as rhetoric, Plato devotes the rest of the
dialogue to refuting it.
Justice as rhetoric equates justice with emotion. (Rhetoric is an appeal to emotion.)
Lawyers use justice talk to win arguments before juries. Clever law'yers sometimes distract
juries from following law.
Note the view of law that creeps into the discussion of justice as rhetoric. Consider

the following passage, from a modern Thrasymachan tract, Hans Kelsen’s What is Justice?:’*
There is in traditional jurisprudence a terminological tendency to identify law and
justice, to use the term law in the sense of just law, and to declare that a coercive order
which on the whole is effective and therefore a valid positive law, or a single norm of such
a social order, is no “real” or “true” law if it is not just. This use of the term “law” has
the effect that any positive law, or single norm of a positive law is to be considered at first
sight as just, since it presents itself as law and is generally called “law.” It may be doubtful
whether it deserves to be termed law, but it has the benefit of the doubt. He who denies
the justice of such “law” and asserts that the so-called law is no “true” law, has to prove
it; and this proof is practically impossible since there is no objective criterion of justice.
Hence the real effect of the terminological identification of law and justice is an illicit
justification of any positive law.
There is not, and cannot be, an objective criterion of justice because the statement
“something is just or unjust” is a judgment of value referring to an ultimate end, and
these value judgments are by their very nature subjective in character, because based on
emotional elements of our mind, on our feelings and wishes. They cannot be verified by
facts, as can statements about reality. Ultimate value judgments are mostly acts of preference;
they indicate what is better rather than what is good; they imply the choice between two
conflicting values, as for instance the choice between freedom and security. Whether a social
system that guarantees individual freedom but no economic security is preferable to a social
system that guarantees economic security but no individual freedom, depends on the decision
whether freedom or security is the higher value. It is hardly possible to deny that there
exists a definite difference between the statement that freedom is a higher value than security,
or vice versa, and the statement that water is heavier than wood. There are individuals who
prefer freedom to security because they feel happy only if they are free, and hence prefer
a social system and consider it just only if it guarantees individual freedom. But others
prefer security because they feel happy only if they are economically secure, and hence
consider a social system just only if it guarantees economic security. Their judgments about
the value of freedom and security and hence their idea of justice are ultimately based on
nothing but their feelings. No objective verification of their respective value judgments is
possible. And since men differ very much in their feelings, their ideas of justice are very
different. This is the reason why in spite of the attempts made by the most illustrious
thinkers of mankind to solve the problem of justice, there is not only no agreement but
the most passionate antagonism in answering the question of what is just. Quite different
is the situation with respect to statements about reality. The statement that water is heavier
than wood can be verified by experiment, showing that the statement conforms to facts.
Statements about facts are based, it is true, on the perception of our senses controlled by
our reason, and hence are in a certain sense subjective too. But the perceptions of our
senses are in a much higher degree under the control of our reason than are our feelings,
and as a matter of fact nobody doubts that water is heavier than wood. Even if we accept

9 295-97 (1957).
6 JUSTICE AND THE LEGAL SYSTEM

a philosophy of radical subjectivism and admit that the universe exists only in the mind of
man, we must nevertheless maintain the difference which exists between value Judgments
and statements about reality. The difference may be relative only as a difference between
degrees of subjectivity (“objective” meaning the lowest possible degree of subjectivity). But
the relative difference is considerable enough to justify the differentiation between a judgment
about what is just and a statement about what is the law, the positive law. “Positive” law
means that a law is created by acts of human beings which take place in time and space,
in contradistinction to natural law, which is supposed to originate in another way. Con¬
sequently, the question of what is the positive law, the law of a certain country or the law
in a concrete case, is the question of a law creating act which has taken place at a certain
time and within a certain space. The ansv;er to this question does not depend on the feelings
of the answering subjects; it can be verified by objectively ascertainable facts, whereas the
question of whether a law of a certain country or the decision of a certain court is just,
depends on the idea of justice presupposed by the answering subject, and this idea is based
on the emotional function of his mind.

5. Socrates’ argument against Thrasymachus resembles his argument against Polemar-

chus: the stronger may mistake their advantage. Socrates does not disagree that the stronger
rule. He is realistic. He does disagree, however, that the advantage of the stronger is whatever
they feel it is. Justice, according to Socrates, requires knowledge of advantage.
In the balance of the dialogue Socrates describes the conditions under which rulers can
accurately perceive their advantage. The first and most important condition, from which

all the rest flow, is that each person must do only one job, “that one for which his nature
made him naturally most fit.”’° Merchants, like Cephalus, must be only merchants, and
not claim that owning property gives them the right to govern. The army must not use
arms to steal our property or to take over the job of government. Rulers must be rulers
only, and not own property, as if they were merchants.

Only a city in which each person “minds his own business” can be a city where rulers
accurately perceive their advantage, a just city. And it will be a city incorporating and
perfecting the primitive conceptions of justice, each in its own proper sphere: property for
merchants, friendship for auxiliaries (or warriors), and the advantage of the stronger for

guardians (or rulers). This is Socrates’ definition of justice: minding one’s own business."
Socrates’ definition contradicts the primitive conceptions of justice in only one respect:
the imaginary just city must be founded on a “noble lie,” that the class structure of the
city reflects differences in the composition of the bodies of its citizens (gold, silver, and
iron/bronze). Cephalus, remember, said that justice meant not lying. We think equality
involves something of a lie. Socrates felt that inequality involves a lie! So the just city is
based on a lie — the lie of inequality.
Surely Socrates’ vision is attractive in many respects.’^ We want judges to behave as
if they were Platonic rulers, considering their advantage only in the most enlightened sense.

10 433a. Also, 370b.

” 433a.

12 414c-415d.

10 For a recent defense, see M. Walzhr, Spiierks of Justice: A Defense of Pluralism and Equality (1983).
 What Is Justice? 7

We want generals to be friends, not enemies; merchants to rule markets, not governments.
But Socrates’ vision also has its unattractive side. Consider the following passages from
Karl Popper’s defense of equality and freedom. The Open Society and Its Enemies:'*
What did Plato mean by “justice”? I assert that in the Republic he used the term
“just” as a synonym for “that which is in the interest of the best state.” And what is in
the interest of the best state? To arrest all change, by the maintenance of a rigid class
division and class rule. If I am right in this interpretation, then we should have to say that
Plato’s demand for justice leaves his political programme at the level of totalitarianism.
The city is founded upon human nature, its needs, and its limitations. “We have stated,
and you will remember, repeated over and over again that each man in our city should do
one work only; namely, that work for which his nature is naturally best fitted.” From this
Plato concludes that everyone should mind his own business; that the carpenter should
confine himself to carpentering, the shoemaker to making shoes. Not much harm is done,
however, if two workers change their natural places. “But should anyone who is by nature
a worker (or else a member of the money-earning class). . .manage to get into the warrior
class; or should a warrior get into the class of the guardians, without being worthy of
it; . . .then this kind of change and of underhand plotting would mean the downfall of the
city.” From this argument which is closely related to the principle that the carrying of arms
should be a class prerogative, Plato draws his final conclusion that any changing or inter¬
mingling within the three classes must be injustice, and that the opposite, therefore, is
justice: “When each class in the city minds its own business, the money-earning class as
well as the auxiliaries and the guardians, then this will be justice.” This conclusion is
reaffirmed and summed up a little later: “The city is just... if each of its three classes
attends to its own work.” But this statement means that Plato identifies justice with the
principle of class rule and class privilege. For the principle that every class should attend
to its own business means, briefly and bluntly, that the state is Just if the ruler rules, if
the worker works, and if the slave slaves.'^
The humanitarian theory of justice makes three main demands or proposals, namely,
(a) the equalitarian principle proper, i.e., the proposal to eliminate “natural” privileges,
(b) the general principle of individualism, and (c) the principle that it should be the task
and the purpose of the state to protect the freedom of its citizens. To each of these political
demands or proposals there corresponds a directly opposite principle of Platonism, namely,
(al) the principle of natural privilege, (bl) the general principle of holism or collectivism,
and (cl) the principle that it should be the task and the purpose of the individual to
maintain, and to strengthen, the stability of the state.

6. We shall consider closely the relations among equality, freedom and justice — whether
justice makes freedom impossible, in what sense justice supports or detracts from equality.
For now, Plato has thrown down the gauntlet: for justice.
7. Though Thrasymachus means
his definition to be an attack against anyone who
takes justice seriously, there is a sense in which Thrasymachus, too, is serious about justice.
Justice, he says first, is the advantage of the stronger; only boobs are taken in by

Volume 1, The Spell of Plato 89, 90, 94 (5th ed. revised 1966).

’5 Plato does not say much about slaves in the Republic, although what he says is significant enough; but
he dispels all doubts about his attitude in the Laws. . . . [Popper’s observation should be taken with caution. Plato’s
attitude towards slavery has been fiercely debated. In the Statesman, to cite another dialogue, Plato makes it clear
that he considers slavery wrong. — Eds.]
JUSTICE AND THE LEGAL SYSTEM

justice talk. But then, when Socrates asks him to explain what he means by this, Thra-
symachus says that the ruling group in each city sets down laws for its advantage. Socrates
confounds Thrasymachus by arguing, as we have seen, that rulers can mistake their advan¬
tage. But there is a related way to confound him, which Socrates misses, because he, like
his contemporaries in Greece, regards law as something objective, to be found by the jury
as if it were fact.’* Socrates could have said that those who enforce and administer the law
may mistake the commands of the rulers. At the least, even on Thrasymachus’ own terms,
the laws’ enforcers can be just only by enforcing laws as the ruling group meant them to
be enforced.
Neither Thrasymachus nor Socrates considered enforcement to be problematic. Assum¬
ing they know their advantage in gross, the ruling group knows exactly what to do in every
case to pursue it. Unless the advantage of the rulers always coincides with a law, ordinary
citizens could say; You told us yesterday your advantage is X. Today you tell us it is Y.
Please be consistent, so we Can know what to do. If you’re inconsistent, then surely you
are being unjust to us.’^
Modern Thrasymachans, for whom the enforcement of law is problematic, have an
alternative to considering justice only as emotion. Consider, again, Kelsen. One possible
meaning of justice, he says, is justice under the

“Justice” in this sense means legality; it is “just” for a general rule to be actually applied
in all cases where, according to its content, this rule should be applied. It is “unjust” for
it to be applied in one case and not in another similar case. And this seems “unjust”
without regard to the value of the general rule itself, the application of which is under
consideration.

A contemporary of Kelsen, Chaim Perelman, developed a more general version of Kelsen’s

idea, the notion of formal justice:’''*
Is there a conceptual element common to all the formulas of justice? Apparently, yes. In
effect, we all agree on the fact that to be just is to treat in equal fashion. Unfortunately,
difficulties and controversies arise as soon as precision is called for. Must everyone be treated
in the same way, or must we draw distinctions? And if distinctions must be drawn, which
ones must we take into account in administering justice? Each man puts forward a different
answer to these questions. Each man advocates a different system. No system is capable of
securing the adherence of all. Some say that regard must be had to the individual’s merits.
Others that the individual’s needs must be taken into consideration. Yet others say it is
impossible to disregard origin, rank, etc.
But despite all their differences, they all have something in common in their attitude.
He who requires merit to be taken into account wants the same treatment for persons having
equal merits. A second wants equal treatment to be provided for persons having the same

’6 For an account of law as evidence in Greek procedure, see A. Harrison, The Law of Athens 134-35
(1971).

’7 Lon Fuller proposed the idea that law has a necessary moral structure, including the regularity of official
action, in The Morality of Law 79-91 (1964).
H. Kelsen, General Theory of Law and State 14 (1945).

w c. Perelman, The Idea of Justice and the Problem of Argument 15-16 (.1. Petrie trans., 1944).
 What Is Justice? 9

needs. A third will demand just, that is, equal, treatment for persons of the same social
rank and so on. Whatever, then, their disagreement on other points, they are all agreed
that to be Just is to give the same treatment to those who are equal from some particular
point ot view, who possess one characteristic, the same, and the only one to which regard
must be had in the administration of justice. Let us qualify this characteristic as essential.
It the possession of any characteristic whatever always makes it possible to group people
in a class or category defined by the fact that its members possess the characteristic in
question, people having an essential characteristic in common will form part of one and
the same category, the same essential category.
We can, then, define formal or abstract justice as a principle of action in accordance
with which beings of one and the same essential category must be treated in the same way.

8. Other than formal justice or justice under law, the modern champions of Thrasy-
machus argue, we must keep justice and law entirely separate. Kelsen, again:^°
[T]he Pure Theory of Law insists upon a clear separation of the concept of law' from that
of justice, be it called natural, true, or objective law, and . . . renounces any justification
of positive law by a kind of superlaw, leaving that problematical task to religion or social
metaphysics.

One question we will be asking you to keep in mind throughout the course is whether
separation between law and justice is possible.

9. Cephalus’ idea of property is not a legal idea. Cephalus never mentions law or law¬
breaking in describing the advantages of property. (Thrasymachus, we have seen, is the
first to mention law, almost as an afterthought, explaining his notion of justice to Socrates.)
We have the idea of property long before we know anything about law. Justice as property
is a moral idea, which informs our thinking about law, but also about many other subjects.
The modern critique attacks justice as property from a perspective very different from
Socrates’. Socrates, remember, attacked property as an insufficient , not an immoral account
of justice. The modern critique, beginning with Hobbes,^’ running through Rousseau to
Rawls, attacks the property principle as unprincipled, and not simply as insufficient.
Thinkers who attack the property principle as immoral often adopt a principle of
contract as the model for justice, as the source of law, and as the highest expression of
human association. The values embedded in contract are exactly the ones Socrates (if not
Plato) found so problematic: freedom and equality. (Rousseau expressed the value of equality
in the passage in Note 2 above.) The vision of association based on contract is very different
from the one based on property. So too is the role of law. Think about these differences
as we proceed through our inquiry.’® When listening to justice arguments, it is always
helpful to understand whether the moral idea animating it is property or contract.

20 H. Kelsen, What Is Justice? 301-02 (1957).

21 T. Hobbes, Leviathan 110-12 (1909) [1651] (justice is keeping covenants).
22 J. Rawls, A Theory of JusTtCE 15-17 (1971) (“justice as fairness” is a contract theory of justice).
23 For more on the relations between contract as justice and justice as contract, see Rosenfeld, Contract and
Justice: The Relation Between Classical Contract Law and Social Contract Theory, 70 Iowa L. Rev. 769 (1985).
JUSTICE AND THE LEGAL SYSTEM

1.2 Distributive and corrective justice

In any society, the basic principles of justice are open to contention. Different people
assert different claims to the distribution of goods, and different reasons for protecting the
existing distribution against the takings of others. It is to these claims and these reasons
in ordinary societies which we must now turn — issues of distributive and corrective justice.

A Theory of Moral Sentiments^'*

Adam Smith

There can be no proper motive for hurting our neighbor, there can be no incitement
to do evil to another which mankind will go along with, except just indignation for evil
which that other has done to us. To disturb his happiness merely because it stands in the
way of our own, to take from him what is of real use to him merely because it may be of
equal or of more use to us, or to indulge, in this manner, at the expense of other people,
the natural preferences which every man has for his own happiness above that of other
people, is what no impartial spectator can go along with. Every man is, no doubt, by
nature, first and principally recommended to his own care; and as he is fitter to take care
of himself than of any other person, it is fit and right that it should be so. Every man,
therefore, is much more deeply interested in whatever immediately concerns himself, than
in what concerns any other man: and to hear, perhaps, of the death of another person,
with whom we have no particular connection, will give us less concern, will spoil our
stomach, or break our rest much less than a very insignificant disaster which has befallen
ourselves. But though the ruin of our neighbor may affect us much less than a very small
misfortune of our own, we must not ruin him to prevent that small misfortune, nor even
to prevent our own ruin. We must here, as in all other cases, view ourselves not so much
according to that light in which we may naturally appear to ourselves, as according to that
in which we naturally appear to others. Though every man may, according to the proverb,
be the whole world to himself, to the rest of mankind he is a most insignificant part of
it. . . . In the race for wealth, and honors, and preferments, he may run as hard as he can,
and strain every nerve and every muscle, in order to outstrip all his competitors. But if he
should jostle, or throw down any of them, the indulgence of the spectators is entirely at
an end. It is a violation of fair play, which they cannot admit of.

Pp. 161-62, from Part I, Section 11, Chapter 2, Of the Sense of Justice, of Remorse, and of the
Consciousness of Merit (1969) [1853).
 What Is Justice? 11

What Is Justice?**
Hans Kelsen

The longing for justice is men’s eternal longing for happiness. It is happiness that man
cannot find alone, as an isolated individual, and hence seeks in society. Justice is social
happiness. It is happiness guaranteed by a social order. In this sense Plato, identifying
justice with happiness, maintains that only a just man is happy, and an unjust man unhappy.
The statement that justice is happiness is evidently not a final answer; it is only shifting
the question. For, now, we must ask: What is happiness?
It is obvious that there can be no “just” order, that is, one affording happiness to
everyone, as long as one defines the concept of happiness in its original, narrow sense of
individual happiness, meaning by a man’s happiness, what he himself considers it to be.
For it is then inevitable that the happiness of one individual will, at some time, be directly
in conflict with that of another. For example, love is one of the most important sources
of happiness as well as of unhappiness. Let us suppose that two men are in love with one
and the same woman, and each believes, rightly or wrongly, that he cannot be happy without
having this woman exclusively for his own wife. However, according to law and perhaps
also according to her own feelings, a woman can be only the wife of one of them. Hence,
the happiness of the one is inevitably the unhappiness of the other. No social order can
solve this problem in a satisfactory, that is to say, in a just way, guaranteeing the happiness
of both — not even the famous judgment of the wise King Solomon. He decided, as will be
remembered, to divide into two parts a child which each of two women claimed as her
own; but he was willing to attribute the child to the one who should withdraw her claim
in order to avoid the death of the child, because — so the king assumed — she truly loved
the child. If the Solomonic judgment was just at all, it was so only under the condition
that one woman only loved the child. If both loved the child, which is quite possible and
even quite probable since both wished to have it, and if both had withdrawn their claim,
the dispute would have remained undecided; and if, despite the fact that both women waived
their claim, the child had been awarded one of them, the judgment would certainly not
have been just, since it would have made one party unhappy. Our happiness very often
depends on the satisfaction of needs which no social order can satisfy.
Another example: The commander-m-chief of the army shall be appointed. Two men
are in competition, but only one can be appointed. It seems to be evident that it is just to
appoint the one who is more fit for the office. But what if the two are equally fit? Then,
no just solution is possible. Let us suppose that the one is considered to be better than the
other because he is tall and handsome, and has an impressive personality, whereas the other,
although professionally absolutely equal, is small and plain and looks insignificant. If the
first one gets the job, the other will not feel that the decision was just. He will ask, “Why
am I not tall and handsome as the other, why has nature given me a less attractive body?”

25 2-3 (1957).
JUSTICE AND THE LEGAL SYSTEM

And, indeed, if we judge nature from the point of view of justice, we must admit that
nature is not just; it makes the one healthy, and the other sick, the one intelligent, the other
stupid. No social order can compensate for the injustice of nature.

General Theory of Law and State^*

Hans Kelsen

Nor is a just order . . . possible even on the supposition that it is trying to bring about
not the individual happiness of each, but the greatest possible happiness of the greatest
possible number of individuals. The happiness that a social order can assure can be happiness
in the collective sense only, that is, the satisfaction of certain needs, recognized by the social
authority, the law-giver, as needs worthy of being satisfied, such as the need to be fed,
clothed, and housed. But which human needs are worthy of being satisfied, and especially
what is their proper order of rank? These questions cannot be answered by means of rational
cognition. The decision of these questions is a judgment of value, determined by emotional
factors, and is, therefore, subjective in character, valid only for the judging subject and
therefore relative only. It will be different according to whether the question is answered
by a believing Christian, who holds the good of his soul in the hereafter more important
than earthly goods, or by a materialist who believes in no afterlife; and it will be just as
different according to whether the decision is made by one who considers personal freedom
as the highest good, i.e. by liberalism, or by one for whom social security and the equality
of all men is rated higher than freedom, by socialism.

26 p. 6 (1945).

Questions

1. Kelsen says that no principle of justice can determine which of the two men should
be allowed to marry the woman. Is this true?
2. Kelsen says that if the handsomer man is appointed to the army position, the
unattractive man will feel that justice was not done. Why? What if the appointer was
looking to select an unattractive man for the position — perhaps because he is jealous of
handsome ones? Then wouldn’t the handsomer man feel that justice was not done? But
isn’t that, ultimately, Kelsen’s point? Or does Kelsen himself have a bias toward the hand¬
somer man? What would Smith say?
3. A mother of two children cuts the dessert cake; she hands a large piece to Jane and
a small piece to Tom. Is our sense of justice offended?
Suppose you ask the mother why she did this. Consider the following set of possible
answers. How does each of them comport with your sense of justice?

(a) “I like Jane more.”

(b) “Jane is a girl.”
 What Is Justice? 13

(c) “Jane is cute; Tom is plain looking.”

(d) “The doctor put Tom on a low sugar diet.”
(e) “Because it’s Tuesday.”
(f) “Tom hates cake.”
(g) “They’ve got to learn that the world isn’t fair.”

4. This is not a coursebook in “social justice.” We are not directly concerned whether,
in our society or in any given society, goods and values have been justly distributed and
allocated to all persons. Yet, is it possible to “assume away” all questions of social justice
whenever there is a lawsuit between individuals? Does litigation take place on a morally
level playing field? Or are “social justice” concerns a part of every case?
Aristotle first talked of two kinds of justice: distributive (or “social”) justice, and
rectificatory (or “corrective”) justice. Consider the following excerpt from Aristotle’s
Nichomachean Ethics, then what Posner has to say about it. Can we ever keep distributive
justice considerations completely out of a lawsuit? How and when can we let them in? On
what terms? Would letting them in be fair to both parties? Think about these questions
now, but keep an open mind about them, as they wilt come up in specific contexts throughout
this course.

Nicomachean Ethics”
Aristotle

Of particular justice” and that which is just in the corresponding sense, (A) one kind
is that which is manifested in distributions of honour or money or the other things that
fall to be divided among those who have a share in the constitution (for in these it is
possible for one man to have a share either unequal or equal to that of another), and (B)
one is that which plays a rectifying part in transactions between man and man. . . .
3(A) . . . The [distributively] just, therefore, involves at least four terms; for the persons
for whom it is in fact just are two, and the things in which it is manifested, the objects
distributed, are two. And the same equality will exist between the persons and between the
things concerned; for as the latter — the things concerned — are related, so are the former;
if they are not equal, they will not have what is equal, but this is the origin of quarrels
and complaints — when either equals have and are awarded unequal shares, or unequals
equal shares. Further, this is plain from the fact that awards should be “according to merit”;
for all men agree that what is just in distribution must be according to merit in some sense,
though they do not all specify the same sort of merit, but democrats identify it with the

27 The selections are from Book V, Chapters 2, 3 and 4 (R. McKeon ed., W.D. Ross trans., 1941).
2® As opposed to the justice which answers to the whole of virtue.” Here Aristotle discusses justice
and
injustice only in terms of what is lawful and fair, unlawful and unfair. [Eds.]
14 JUSTICE AND THE LEGAL SYSTEM

status of freeman, supporters of oligarchy with wealth (or with noble birth), and supporters
of aristocracy with excellence.
The just, then, is a species of the proportionate. . . . [T]he unjust is what violates the
proportion. Hence one term becomes too great, the other too small, as indeed happens in
practice; for the man who acts unjustly has too much, and the man who is unjustly treated
too little, of what is good. . . .
This, then, is one species of the just.
4(B) The remaining one is the rectificatory, which arises in connection with transactions
both voluntary and involuntary. This form of the just has a different specific character
from the former. For the justice which distributes common possessions is always in accor¬
dance with the kind of proportion mentioned above (for in the case also in which the
distribution is made from the common funds of a partnership it will be according to the
same ratio which the funds put into the business by the partners bear to one another); and
the injustice opposed to this kind of justice is that which violates the proportion. But the
justice in transactions between man and man is a sort of equality indeed, and the injustice
a sort of inequality; not according to that kind of proportion [the ratios in distributive
justice], however, but according to arithmetical proportion. For it makes no difference
whether a good man has defrauded a bad man or a bad man a good one, nor whether it
is a good or a bad man that has committed adultery; the law looks only to the distinctive
character of the injury, and treats the parties as equal, if one is in the wrong and the other
is being wronged, and if one inflicted injury and the other has received it. Therefore, this
kind of injustice being an inequality, the judge tries to equalize it; for in the case also in
which one has received and the other has inflicted a wound, or one has slain and the other
been slain, the suffering and the action have been unequally distributed; but the judge tries
to equalize things by means of the penalty, taking away from the gain of the assailant. For
the term “gain” is applied generally to such cases, even if it be not a term appropriate to
certain cases, e.g. to the person who inflicts a wound — and “loss” to the sufferer; at all
events when the suffering has been estimated, the one is called loss and the other gain.

The Concept of Corrective Justice

in Recent Theories of Tort Law”
Richard Posner

[These] points should be noted about Aristotle’s concept of corrective [rectificatory]

justice:
1. The duty to rectify is based not on the fact of injury but on the conjunction of
injury and wrongdoing. The injurer must do wrong (adikei) as well as do harm (eb/apsen),
and the victim must be wronged {adiketei) as well as harmed (beblaptai). Not all departures
from distributive justice call for correction. Someone who voluntarily makes a bad bargain

29 10 J. Legal Stud. 187, 190-91 (1981).

 What Is Justice? 15

may end up worse ott than the principles of distributive justice would, but for the bad
bargain, dictate. But he has not been wronged, and he is not entitled to rectification.
Moreover, what is wrongtul or unjust — adikos — is not defined in Chapter 4; it is assumed.
In Chapter 8 ot Book V we learn that “Whether an act is or is not one of injustice (or of
justice) is determined by its voluntariness or involuntariness.” But even within the class of
voluntary acts, only those that are deliberate can be acts of injustice. Those done by
misadventure (where “the injury takes place contrary to reasonable expectation”) or by
mistake (where, for example, “he threw not with intent to wound but only to prick”) are
not.

2. The idea that distributive considerations do not count in a setting of corrective justice
(“it makes no difference whether a good man has defrauded a bad man
or a bad man a
good one . . . ”) is a procedural principle. It is not equivalent to saying that distributive
notions should not affect the definition of rights or even that they should not enter into
the determination what sorts of acts are unjust or wrongful. The point, rather, is that the
judge is interested only in the character — whether it is wrongful — of the injury, rather than
in the character of the parties apart from that of the injury: “the moral worth of persons . . .
is ignored.”^”

30 2 The Ethics of Aristotle 113 n. 3 (Alexander Grant ed., 4th rev. ed. 1885).

Questions
1. Suppose a law professor asks the students in her seminar on “Justice” to turn in
a paper which will determine the final grade in the seminar. The paper should be at least
10 pages long. It should be a critical analysis of the legal philosophy — or any aspect thereof —
of Hans Kelsen. Monica turns in a carefully typed 50-page paper with 120 footnotes,
exhaustively surveying the voluminous writings, both in German and English, of Kelsen on
law and justice and showing in detail how his thoughts on the subject of justice developed
over time. Elizabeth turns in a hurriedly typed 10-page paper with one footnote, arguing
that an inconsistency in one paragraph of Kelsen’s writings could only be avoided if Kelsen
were to change the conception of justice that the seminar has been attributing to him.
The law professor reads the papers and tentatively decides to give Monica a grade of
C-h and Elizabeth a grade of A-h. Would the grades be just?
2. Suppose a law professor announces to her first-year class that in determining final
grades, she will read each student’s application for admission to the law school and determine
the student’s financial status. Then she will add extra points to the final grade for students
who come from disadvantaged or poor families, or who are on scholarships, and take away
some points from students who come from professional or highly prosperous families. Is
her plan just or unjust?
3. Same facts as in the preceding question. A student challenges the professor to explain
the rationale for her grading plan. She replies as follows:
JUSTICE AND THE LEGAL SYSTEM

In this society there are great disparities of economic wealth and privilege. A baby
coming into the world has no choice of who its parents will be and has done nothing
to deserve being in one family rather than another. Yet some babies achieve the windfall
of great wealth and privilege, while other babies — indistinguishable from the first group
on any theory of justice — are born into poor and underprivileged families. For hundreds
of years this society has talked about these issues, yet today the gap between rich and
poor is just about as large as it has ever been.
If I were President, I would do what I could to alleviate this unjust economic
disparity. I am not President; I am merely a law professor. But as a law teacher, I have
the same obligation to do everything I can to alleviate the unjust economic disparity
that I would have if I were President. Since it is within my power to take this small
step to contribute toward social justice, I feel obliged to hand in final grades that tend
to redress the unjust disparity between rich and poor.

Does this response change your answer to the preceding question? Has the law professor
made a persuasive argument? Can it be refuted? How?
4. Suppose at the end of the first year of law school two students get such low grades
that they are flunked out of school. However, in some cases, readmission (on probation
status) is possible. They petition the faculty for readmission.
Richard says: “I worked extremely hard. I went to every class, took extensive notes,
studied them after class, and rewrote them into a separate notebook with excerpts from the
cases. I briefed each and every case before each class. Whenever the casebook cited a law-
review article, I went to the library and read it. I averaged about five and a half hours of
sleep per night. I never took a vacation. I never interviewed for a job. I worked through
every weekend and every vacation. Although our midterm grades are only practice exams
and not officially recorded. I’m glad that I had low grades on them because I was spurred
on to even greater effort as a result. I studied intensively for the finals with my study group.
My notes were so complete that everyone wanted to exchange notes with me. I did my very

best and I desperately want to finish taw school. My parents are counting on me. I don’t
know why I did so badly on the finals; maybe I had a kind of mental logjam because I
had crammed so much material into my head.”
Kenneth says: “I didn’t take the first year of law seriously; I didn’t study, and I didn’t
do my homework. In the middle of the school year I got into a heavy relationship with a
woman who dumped me a week before the finals. I couldn’t study and couldn t see straight,
and blew every one of my final exams. However, when 1 took the midterm practice exams
I got straight A’s. I hadn’t studied for them either.”
The university administration informs the faculty that they can readmit only one of
these students due to overenrollment the next year. The faculty decides to readmit Kenneth.
Was this decision just?

5. Why don’t we simply say, ‘‘justice consists in giving each person his due?” Is that
a good definition? Does it explain what justice is? Consider the following.
 What Is Justice? 17

Social Justice^’
David Miller

The most valuable general definition of justice is that which brings out its distributive
character most plainly: justice is suum cuique, to each his due. The just state of affairs is
that in which each individual has exactly those benefits and burdens which are due to him
by virtue of his personal characteristics and circumstances. We have yet to inquire what
those characteristics and circumstances may consist in, but the general definition conveniently
leaves this question open.
Our definition ot justice has two important corollaries. First, it implies that where two
men are equal in the relevant respects (so that their “dues” are the same) they should be
treated in the same way. This principle (“Treat equals equally” or “Treat men equally except
where there are relevant differences between them”) has often been proposed as a general
characterization of justice, but it seems to me inferior to the one I have given. This is
mainly because it presents the relation between the concepts of justice and equality in a
misleading way. The principle embodies only a weak sense of equality, whose connection
with our general definition of justice is obviously close; but it may also encourage the false
belief that justice is conceptually tied to a stronger notion of equality. Rather than justice
necessarily being egalitarian, equality in the strong sense constitutes one way of interpreting
justice which may either be accepted or rejected. It is therefore better to regard “treat equals
equally” simply as a corollary of the more fundamental principle “render to each his due.”
The second corollary of this principle is perhaps only a corollary in a loose sense, but it
does appear to be suggested by the original formula: this is the principle of proportion.
Such a principle applies in cases where a person’s due depends upon an attribute which can
be quantified. We then have the principle that the amount of benefit he enjoys or the
amount of burden he suffers should be proportional to the quantity of the relevant attribute
which he possesses. Thus if the relevant attribute were “gravity of crime committed”
(calculated, let us suppose, on the basis of the total amount of pain produced), we would
have the principle that the amount of punishment inflicted on each man should be pro¬
portional to the gravity of the crime which he has committed. The principle of proportion
allows us to deal not only with cases in which “dues” are identical, but with cases in which
“dues” are different, and yet can be expressed as quantities of the same attribute.
The notion of conservative justice can be derived from the general formula by inter¬
preting a man s due as that to which he has a right or is entitled. It may thus be expressed
in the form “to each according to his rights.” In order to put such a conception of justice
into practice, it is of course necessary to know what each man’s rights are. The rights in
question may be legal rights, institutional rights, or certain types of moral right, such as
the rights one derives from a promise or other non-legal agreement. Rights generally derive
from publicly acknowledged rules, established practices, or past transactions: they do not
depend upon a person’s current behavior or other individual qualities. For this reason it is

3’ Pp. 20-21, 25-27 (1976).

JUSTICE AND THE LEGAL SYSTEM

appropriate to describe this conception of justice as “conservative.” It is concerned with

the continuity of a social order over time, and with ensuring that men’s expectations of
one another are not disappointed.

Although we generally think that the protection of individuals’ rights is an important

matter of justice, we do not usually believe that it exhausts that concept, for the distribution
of rights can itself be assessed from the point of view of justice, as Sidgwick saw. To do
this we must switch to a different interpretation of justice, termed by Sidgwick “ideal” and
by Raphael “prosthetic” justice. What is the principle of ideal justice? In Sidgwick’s view
it was the principle of desert; men ought to be rewarded according to their deserts. This
is evidently another way in which the general formula of justice can be filled out, a man’s
due here being taken to mean his deserts. “Desert” in turn may be interpreted in a number
of ways, although it always depends upon the actions and personal qualities of the person
said to be deserving. Thus a man’s deserts may be measured by his moral virtue, his
productive efforts, his capacities, and so on.
It is fairly clear that justice as the protection of rights, and justice as desert are
conflicting values. We have no reason to believe in general that individuals’ rights, which
are to be protected by conservative justice, correspond to their deserts. To take one obvious
example from our own society, an individual has a right to inherit wealth, that is to say a
right to whatever amount of money another may leave him, once taxes have been deducted;
yet he can hardly be said to deserve money so received, unless he has actually earned his
benefactor’s gratitude through services performed prior to his death. There is a conflict
here between conservative justice, which insists that an individual’s right to inherit be
protected, and justice as desert, which demands that a man should earn whatever benefits
he receives. This conflict recurs in many other cases.
Does the principle of desert exhaust ideal justice? Sidgwick believed so — but Raphael,
writing nearly a century later, argues that the criterion of need is more central to prosthetic
(ideal) justice than the notion of desert. If we take up Raphael’s suggestion, we have a
third interpretation of justice to contend with, a third rendering of the general formula “to
each his due.” The concept of need must be distinguished from the concept of desert, for
when we speak of a man deserving something we have in mind some favorable attribute
which we think ought to bring him a benefit, whereas when we speak of him needing
something we are thinking of a lack or deficiency on his part— for instance we may say
that a man needs food, meaning that it is necessary to him, that it will be injurious to him
not to have it.

Questions
1. Do you agree with Miller that there are three and only three distinct kinds of
distributive justice: (a) to each according to his or her legal rights, (b) to each according
to whether he or she deserves it, and (c) to each according to his or her needs? Which one,
or more, of these would Kelsen have chosen? Perelman?
2. Consider the following argument made by St. Thomas Aquinas in the Eleventh
 What Is Justice? 19

Article of his masterwork, Summa Theologica:^'^

It would seem that the act of justice is not to render to each one his due. For Augustine
ascribes to Justice the act of succoring the needy. Now, in succoring the needy, we give them
what is not theirs but ours. Therefore, the act of justice does not consist in rendering to
each one his due.

Does St. Thomas’ argument in effect show that Miller’s third category of distributive justice
is incompatible with either of the other two categories?
3. Do you personally believe in social (distributive) justice? Consider the following.

32 Aquinas, Summa Theologica, Pf. 11, Q. 58, Art. 11, Obj. 1.

Law, Legislation, and Liberty”

Friedrich A. Hayek

What I hope to have made clear is that the phrase ‘social justice’ is not, as most people
probably feel, an innocent expression of good will towards the less fortunate, but that it
has become a dishonest insinuation that one ought to agree to a demand of some special
interest which can give no real reason for it. If political discussion is to become honest it
is necessary that people should recognize that the term is intellectually disreputable, the
mark of demagogy or cheap journalism which responsible thinkers ought to be ashamed
to use because, once its vacuity is recognized, its use is dishonest. I may, as a result of
long endeavors to trace the destructive effect which the invocation of ‘social justice’ has
had on our moral sensitivity, and of again and again finding even eminent thinkers thought¬
lessly using the phrase, have become unduly allergic to it, but I have come to feel strongly
that the greatest service 1 can still render to my fellow men would be that I could make
the speakers and writers among them thoroughly ashamed ever again to employ the term
‘social justice.’
We are not familiar with the concept of non-viable systems of morals and certainly
cannot observe them anywhere in practice since societies which try them rapidly disappear.
But they are being preached, often by widely revered saintly figures, and the societies in
decay which we can observe are often societies which have been listening to the teaching
of such moral reformers and still revere the destroyers of their society as good men. More
often, however, the gospel of ‘social justice’ aims at much more sordid sentiments: the
dislike of people who are better off than oneself, or simply envy, that ‘most anti-social and
evil of all passions’ as John Stuart Mill called it, that animosity towards great wealth which
represents it as a ‘scandal’ that some should enjoy riches while others have basic needs
unsatisfied, and camouflages under the name of justice what has nothing to do with justice.
At least all those who wish to despoil the rich, not because they expect that some more

33 Vol. 2, The Mirage of Social Justice, pp. 97, 98-100 (1976).

JUSTICE AND THE LEGAL SYSTEM

than deserving might enjoy that wealth, but because they regard the very existence of the
right as an outrage, not only cannot claim any moral justification for their demands, but
indulge in a wholly irrational passion and in fact harm those to whose rapacious instincts
they appeal.
There can be no moral claim to something that would not exist but for the decision
of others to risk their resources on its creation. What those who attack great private wealth
do not understand is that it is neither by physical effort nor by the mere act of saving and
investing, but by directing resources to the most productive uses that wealth is chiefly
created. And there can be no doubt that most of those who have built up great fortunes
in the form of new industrial plants and the like have thereby benefited more people through
creating opportunities for more rewarding employment than if they had given their super¬
fluity away to the poor. The suggestion that in these cases those to whom in fact the workers
are most indebted do wrong rather than greatly benefit them is an absurdity. Though there
are undoubtedly also other and less meritorious ways of acquiring large fortunes (which we
can hope to control by improving the rules of the game), the most effective and important
is by directing investment to points where they most enhance the productivity of labour —
a task in which governments notoriously fail, for reasons inherent in non-competitive bureau¬
cratic organizations.
But it is not only by encouraging malevolent and harmful prejudices that the cult of
‘social justice’ tends to destroy genuine moral feelings. It also comes, particularly in its
more egalitarian forms, into constant conflict with some of the basic moral principles on
which any community of free men must rest. This becomes evident when we reflect that
the demand that we should equally esteem all our fellow men is irreconcilable with the fact
that our whole moral code rests on the approval or disapproval of the conduct of others;
and that similarly the traditional postulate that each capable adult is primarily responsible
for his own and his dependants’ welfare, meaning that he must not through his own fault
become a charge to his friends or fellows, is incompatible with the idea that ‘society’ or
government owes each person an appropriate income.
Though all these moral principles have also been seriously weakened by some pseudo¬
scientific fashions of our time which tend to destroy all morals — and with them the basis
of individual freedom — the ubiquitous dependence on other people’s power, which the
enforcement of any image of ‘social justice’ creates, inevitably destroys that freedom of
personal decisions on which all morals must rest. In fact, that systematic pursuit of the

ignis fatuus of ‘social justice’ which we call socialism is based throughout on the atrocious
idea that political power ought to determine the material position of the different individuals
and groups — an idea defended by the false assertion that this must always be so and socialism
merely wishes to transfer this power from the privileged to the most numerous class. It was
the great merit of the market order as it has spread during the last two centuries that it
deprived everyone of such power which can be used only in arbitrary fashion. It has indeed
brought about the greatest reduction of arbitrary power ever achieved. This greatest triumph
of personal freedom the seduction of ‘social justice’ threatens again to take from us. And
it will not be long before the holders of the power to enforce ‘social justice’ will entrench
themselves in their position by awarding the benefits of ‘social justice’ as the remuneration
 What Is Justice? 21

tor the conterment of that power and in order to secure to themselves the support of a
praetorian guard which will make it certain that their view of what is ‘social justice’ will
prevail.

1.3 Vengeance

Wi ld Justice^'*
Susan Jacoby

Justice is a legitimate concept in the modern code of civilized behavior. Vengeance is

not. We prefer to avert our eyes from those who persist in reminding us of the wrongs they
have suffered — the mother whose child disappeared three years ago on a New York street
and who, instead of mourning in silence, continues to appear on television and appeal for
information about her missing son; the young Sicilian woman who, instead of marrying
her rapist as ancient local custom dictates, scandalizes the town by bringing criminal charges;
the concentration-camp survivors who, instead of putting the past behind them, persist in
pointing their fingers at ex-Nazis living comfortable lives on quiet streets. Such people are
disturbers of the peace; we wish they would take their memories away to a church, a
cemetery, a psychotherapist’s office and allow us to return justice and vengeance to the
separate compartments they supposedly occupy in twentieth-century life.

S. Jacoby, Wild Justice pp. 1-2 (1983).

Payne v. Tennessee
111 S. Ct. 2597
United States Supreme Court
June 27, 1991

Petitioner [Pervis Tyrone] Payne was con¬ on the continuing effects on Nicholas of his expe¬
victed by a Tennessee jury of the first-degree mur¬ rience and on the effects of the crimes upon the
ders of Charisse Christopher and her 2-year-old victims’ family. The jury sentenced Payne to death
daughter [Lacie], and of first-degree assault upon, on each of the murder counts.

with intent to murder, Charisse’s 3-year-old son CHIEF JUSTICE REHNQUIST delivered
Nicholas. The brutal crimes were committed in the opinion of the court.
the victims’ apartment after Charisse resisted [Nicholas survived, despite several wounds
Payne’s sexual advances. During the sentencing inflicted by a butcher knife that completely pen¬
phase of the trial, Payne called his parents, his etrated through his body from front to back.
girlfriend, and a clinical psychologist, each of Charisse had sustained 42 direct knife wounds and
whom testified as to various mitigating aspects of 42 defensive wounds on her arms and hands. The
his background and character. The State called wounds were caused by 41 separate thrusts of a
butcher knife. Lacie had suffered stab wounds to
Nicholas’ grandmother, who testified that the
child missed his mother and baby sister. In arguing the chest, abdomen, back, and head.
for the death penalty, the prosecutor commented [During the sentencing hearing, the prose-
JUSTICE AND THE LEGAL SYSTEM

cutor said to the jury: “Somewhere down the road caused by the defendant. “The State has a legit¬
Nicholas is going to grow up, hopefully. He’s imate interest in counteracting the mitigating evi¬
going to want to know what happened. And he dence which the defendant is entitled to put in,
is going to know what happened to his baby sister
by reminding the sentencer that just as the mur¬
and his mother. He is going to want to know what derer should be considered as an individual, so
type of justice was done. He is going to want to
too the victim is an individual whose death rep¬
know what happened. With your verdict, you will
resents a unique loss to society and in particular
provide the answer. No one will ever know about
Lacie Jo because she never had the chance to grow to his family.” Booth, 482 U.S. at 517 (White, J.,
up. Her life was taken from her at the age of two dissenting). By turning the victim into a “faceless
stranger at the penalty phase of a capital trial,”
years old. So, no there won’t be a high school Booth deprives the State of the full moral force
principal to talk about Lacie Jo Christopher, and
of its evidence and may prevent the jury from
there won’t be anybody to take her to her high
having before it all the information necessary to
school prom. And there won’t be anybody there —
there won’t be her mother there or Nicholas’ determine the proper punishment for a first-degree
murder.
mother there to kiss him at night. His mother will
never kiss him good night or pat him as he goes Reconsidering [Booth and Gathers] now, we
off to bed, or hold him and sing him a lullaby.”] conclude . . . that they were wrongly decided and
We granted certiorari ... to reconsider our
should be, and now are, overruled.
holdings in Booth and Gathers^^ that the Eighth
Amendment prohibits a capital sentencing jury JUSTICE MARSHALL, with whom
from considering “victim impact” evidence relat¬ JUSTICE BLACKMUN joins, dissenting.
ing to the personal characteristics of the victim
and the emotional impact of the crimes on the [Ajdmission of victim-impact evidence cre¬
victim’s family. ates an unacceptable risk of sentencing arbitrar¬
We are now of the view that a State may iness. As Justice Powell explained in Booth, the
properly conclude that for the jury to assess mean¬ probative value of such evidence is always out¬
ingfully the defendant’s moral culpability and weighed by its prejudicial effect because of its
blameworthiness, it should have before it at the
inherent capacity to draw the jury’s attention
sentencing phase evidence of the specific harm away from the character of the defendant and the
circumstances of the crime to such illicit consid¬
erations as the eloquence with which family mem¬
3* Booth V. Maryland, 482 U.S. 496 (1987); South bers express their grief and the status of the victim
Carolina v. Gathers, 490 U.S. 805 (1989). [Eds.] in the community.

Questions
1. Is the decision in Payne a return to the notion of “vengeance” described by Susan
Jacoby?
2. Should a “hit-man” for the “Mob,” who kills a rival criminal boss, be entitled to
argue that he should be given a very light sentence because he removed an undesirable
person from society?
3. Consider the “victim-impact” approach in ordinary civil litigation. Suppose a poor
mother with three children, whose husband has left her, is unable to come up with the rent
for January. Would it be just for the landlord to evict her? Should the landlord be allowed
to evict her immediately for non-payment of rent? Should the landlord be allowed to evict
her after a period of time?
4. Would the following consideration be relevant in the (a) legal and (b) moral senses
 What Is Justice? 23

of “relevant”: the landlord herself has been left with two children, is renting out one room
in her house and desperately needs the rent to make payments on the mortgage, and without
the rent will lose her house to the bank? If your answer differs between (a) and (b), what
background considerations played a role in your mind in leading to that difference?
5. Suppose the agent for an insurance company tells the victim of an automobile
accident, who is badly crippled, that the most that his company will pay as compensation
for this kind of accident is fifty thousand dollars, that if the victim wants a penny more
the company will litigate the case and drag it out in court for years, and that at the end
the victim won’t get any more than fifty thousand dollars anyway and will have all of it
eaten up in legal costs. Suppose the victim does not consult with a lawyer, but rather asks
her family and her friends, and they tell her that she had better take the settlement. She
does. Later she meets a lawyer who tells her that if she had threatened to litigate, the
insurance company would have easily given her half a million dollars, and she could have
won at least two million if she had gone ahead and litigated. Was it unjust for the insurance
agent to make the representations he made to the victim? Can he argue that if the victim
wasn’t clever enough to see through his self-serving threats, she doesn’t deserve more than
what his company paid her?
6. What if the agent for the insurance company was a lawyer? Does a lawyer have
responsibilities for the administration of justice an ordinary agent does not have? This is
the question we address in the following section.

1.4 Lawyering and justice

Do the state and the organized bar have an interest in justice? In practice, might it
not turn out that they have an interest only in the appearance of justice? Is it not always
in the interest of rulers to convince the public that justice is being done, irrespective of
reality? Kelsen says that legislators and judges always say that the law they enact or apply
is in conformity with justice. What would Plato say?

What Is Justice?’*
Hans Kelsen

Plato advocates the opinion that a just man — that means in this connection, a man
who obeys the law — and only a just man, is happy; whereas an unjust man — a man who
violates the law— is unhappy. Plato says, that “the most just life is the most pleasant.””
Plato, however, admits that perhaps in one case or another the just man may be unhappy

3* 6-7 (1957).

37 Plato, The Laws, 662b.

JUSTICE AND THE LEGAL SYSTEM

and the unjust man happy. But, asserts the philosopher, it is absolutely necessary that the
individuals, subject to the legal order, believe in the truth of the statement that only the
just man is happy, even if it should not be true; for otherwise nobody would obey the law.
Consequently the government has, according to Plato, the right to spread among the people
by means of propaganda the doctrine that the just are happy and the unjust unhappy, even
if this doctrine be a lie. If this is a lie, says Plato, it is a very useful lie, for it guarantees
obedience to the law. “Could a law giver, who was worth his salt, find any more useful
lie than this, or one more effective in persuading all men to act justly in all things willingly
and without constraint? ... If I were a legislator, I should endeavour to compel the poets
and all the citizens to speak in this sense [that the most just life is the happiest].”^* The
government, then, is fully justified in making use of a useful lie. Plato places justice — and
that means here, what the government considers to be justice, namely, lawfulness — above
truth; but there is no sufficient reason not to place truth above lawfulness and to repudiate
as immoral a governmental propaganda based on lies, even if it serves a good purpose.

Some Greek Trials: Order and Justice

In Homer, Hesiod, Aeschylus and Plato^’
David Luban

Hesiod’s view of the primacy of justice appears [in Plato’s The Laws] as an exoteric,
or public, doctrine, promulgated to maintain a city organized esoterically along the lines
of the Homeric notion that stability and civic friendship are primary and justice merely
secondary. [The quest for justice] is honored in myth even as it is denied in practice.
Plato, I believe, put his finger on an immensely important problem of political psy¬
chology. On the Aeschylean elaboration of Homer’s view, institutions of justice exist (par¬
adoxically) to stabilize a society rather than to do justice. But if people believe that these
institutions do not do justice, if they believe the Aeschylean view [that the institutions exist
to promote social order], then they will not respect those institutions, and the institutions
will break down — they (paradoxically) will not stabilize the society. Hence the Aeschylean
view must remain esoteric, and most people must instead be made to believe in the justice
of those institutions.
This is a very contemporary dilemma. The American Bar Association Code of Pro¬
fessional Responsibility requires that “a lawyer should avoid even the appearance of pro¬
fessional impropriety,’’ and explains:
Continuation of the American concept that we are to be governed by rules of law requires
that people have faith that justice can be obtained through our legal system. A lawyer
should promote public confidence in our system and in the legal profession.'”’

3* Plato, The Laws, 11, par. 663.

39 54 TLnn. L. Rev. 279, 321-24 (1987).
90 Model Code of Professional Responsibility Canon 9 and EC 9-1 (1979).
 What Is Justice? 25

This is a troubling rule. Suppose a lawyer is convinced that the legal system does not deserve
confidence, that it is proloundly corrupt: it sounds as though the lawyer could be disciplined
tor making these suspicions too public. The rule quotes a judicial opinion: “Confidence in
our law, our courts, and in the administration of justice is our supreme interest.”^’ If
confidence is the supreme interest, it follows that it is more important than our law, courts
and administration of justice really deserving this confidence. One may object that the court
could not mean to be saying this, but it is in fact a logical consequence of legal instru¬
mentalism, the view that stability is more important than justice. For stability comes from
public confidence in our institutions, whether they deserve it or not; justice, by contrast,
means that they deserve it. As Karl Llewellyn wrote, defending an instrumentalist view:

An impressive ceremonial has a value in making people feel that something is being done;
this holds, whether the result is right or wrong; and there is some value in an institution
which makes men content with fate, whatever that fate may be.^^

The lawyer must therefore uphold the ceremonial “whether the result is right or wrong,”
and keep up public confidence in justice even if that confidence is misplaced. The lawyer
must join in deceiving the public. Or, in the words of H.L. Mencken, “bosh is the right
medicine for boobs.”^^
I believe that the Platonic apotheosis of legal instrumentalism is its refutation. The
defining fact about legal institutions that do not do justice is that they create innocent
victims.

Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 141 A. 866, 868 (1928), quoted in Model Code of
Professional Responsibility Canon 9 n.2 (1979).

Llewellyn, On Reading and Using the Newer Jurisprudence, 40 Colum. L. Rev. 610 (1940).
H.L. Mencken, Gamalielese Again, in A Carnival of Buncombe 43 (1956).

Questions
1. What is the difference between what is fair and what is perceived to be fair?
2. Do you agree with Luban that lawyers’ associations seem to be more concerned
with the appearance of justice than with its actuality? What would motivate a professional
organization to have this overriding concern?
3. A lawyer is an officer of the court. He or she is required to faithfully observe rules
of procedure and rules governing the representation of clients. What if some of those rules
lead to an injustice? Should an attorney ever disobey a law because obeying it would cause
an injustice to a client?
JUSTICE AND THE LEGAL SYSTEM

Utilitarianism'*'*
John Stuart Mill

In most if not in all languages, the etymology of the word which corresponds to “just”
points distinctly to an origin connected with the ordinances of law. Justum is a form of
jussum, that which has been ordered. Dikaion comes directly from dike, a suit at law.
Recht, from which came right and righteous, is synonymous with law. The courts of justice,
the administration of justice, are the courts and the administration of law. La justice, in
French, is the established term for judicature. I am not committing the fallacy, imputed
with some show of truth to Horne Tooke, of assuming that a word must still continue to
mean what it originally meant. Etymology is slight of evidence of what the idea now signified
is, but the very best evidence of how it sprang up. There can, I think, be no doubt that
the idee mere, the primitive element, in the formation of the notion of justice was conformity
to law. It constituted the entire idea among the Hebrews, up to the birth of Christianity;
as might be expected in the case of a people whose laws attempted to embrace all subjects
on which precepts were required, and who believed those laws to be a direct emanation
from the Supreme Being. But other nations, and in particular the Greeks and Romans, who
knew that their laws had been made originally, and still continued to be made, by men,
were not afraid to admit that those men might make bad laws; might do, by law, the same
things, and from the same motives, which if done by individuals without the sanction of
law would be called unjust. And hence the sentiment of injustice came to be attached, not
to all violations of law, but only to violations of such laws as ought to exist, including such
as ought to exist but do not and to laws themselves if supposed to be contrary to what
ought to be law. In this manner the idea of law and of its injunctions was still predominant
in the notion of justice, even when the laws actually in force ceased to be accepted as the
standard of it.

Rethinking Legal Education'*®

Anthony D’Amato

Many clear-minded lay observers throughout history have concluded that justice and
injustice are all that matter in a legal system. The person on the street is apt to be skeptical
about lawyers who simply know how to twist the meaning of words. Underworld slang for
attorney is “mouthpiece.” Many novelists have shown how legalism can be employed in the
service of state oppression. Historians have explained how the arcane processes of trials
and inquisitions have been perverted to serve the ends of the state— or, more specifically,
the ends of a group of persons who are in effective control of the state at a given time.

From J.S. Mill, Utilitarianism, On I.ihf.rty, Essay on Bentiiam 302-03 (M. Warnock ed. 1962)(from
ch. 5, On the Connection Between Justice and Utility).

'•5 74 Marquette L. Rev. 1, 30, 35, 47 (1990).

 What Is Justice? 27

The grossest forms of injustice can be given the patina of legality by the solemnities of
law-words spoken in official settings.'** Public prosecutors and defense attorneys can lose
sight of justice, and in cowardice induced by the relativity of law-words can become capable
ot unfairness so perverse that they fail to recognize how unfair they have become.
The change I advocate, stated in its simplest and perhaps most controversial manner,
is that law schools should stop teaching law. Instead we should teach justice. Justice is the
purpose and goal of law. It is the reason law exists. It animates and breathes life into the
law. The professional calling of a lawyer is to help achieve justice in society. The skill of
an advocate is the ability to convince a judge that his client’s cause is a just one and his
client should win the lawsuit. The role of a judge is to decide cases justly. Since the judge
is presented with plausible legal arguments from both sides, the judge will usually pick the
side that she believes ought to win.*’’ This “ought” is a moral imperative; it is part of her
sense of justice. It is not a legal imperative except to the extent that the judge feels that
one side’s interpretation of the law is coincident with the dictates of justice. When the judge
couches her opinion in terms of “law” (which is indeed the presently acceptable way of
presenting a judicial opinion to the legal community), we can interpret her opinion as
showing that she has chosen the more deeply sound legal position by using justice as a
guide to the choice between the two conflicting legal arguments presented by the parties to
the court.
Teaching justice is a way to teach law. Since law is taught by the mental operation of
similarity and analogy, and since common law depends on precedents, the legal process
works when we compare past decisions to present ones. All we have to add is the normative
component: that we ought to decide present cases similarly to the way past cases were
decided. And this “ought” is provided by the consideration of justice. Justice requires the
perpetuation of precedents because that is the only way to treat present litigants fairly. As
the old cliche puts it, justice means treating like cases alike. This is not a tautology; it is
a profound truth. It is a tautology only at the verbal level, but since (I claim that) justice
notions are pre-verbal, what case is “like” another is a primitive pre-verbal notion that
cannot be defeated by verbal logic constructs.
In order to study whether a past decision is similar to a present case, we have to know
the facts of the past decision and compare it to present facts. Legal training thus consists
in reading hundreds and hundreds of cases and comparing them with each other and with
present fact situations. In doing this work, we will sharpen our sense of justice by honing

Compare what Judge Richard Posner says about the role of a judge. A Judge is “a decision maker in a
system of government, and such a decision maker must be concerned not only with doing substantive Justice in
the case at hand but also with maintaining a legal fabric that includes considerations of precedent, of legislative
authority, of the framing of issues by counsel, of the facts of record, and so forth.” R. Posner, The Problems
OF Jurisprudence 156-57 (1990).

Of course, Judges do not necessarily decide cases according to their sense of Justice. The possibility always
exists that bribery, corruption, political dealing, conflict of interest, and prejudice can eclipse for a Judge the
dictates of Justice. See G. Spence, With Justice For None 101-02 (1989) (“1 saw a Judge throw out the Just
case of a widow whose husband had been murdered, because the Jury’s verdict would have been an embarrassment
to the governor who had appointed him. 1 saw a Judge permit the prosecution of an innocent man because the
man was unpopular in the Judge’s club.”)
JUSTICE AND THE LEGAL SYSTEM

our ability to recognize patterns of factual similarity and analogy.

Teaching justice instead of “law” does not entail wholesale jettisoning of existing courses
or casebooks. I am talking about a change of focus, of emphasis — but it is a change that
would reverberate in every course and in every class session. The question we should ask
of every case is not, “what is the rule of law that this case lays down?” but rather, “was
justice done to the parties?” If we find that justice was not done, we should examine how
the legal system went wrong. Perhaps it went wrong because of bad lawyering. Perhaps the
“rule” that the case could be said to exemplify should have been interpreted differently by
the court. Perhaps certain facts were not adduced in court because a lawyer thought that
those facts were not legally relevant. Indeed, bad lawyering — a not surprising product of
the way law schools train future lawyers — is often associated with blunders at the trial level
concerning the introduction of evidence; the incompetent attorney is too readily convinced
of the legal irrelevancy of potent evidence. Yet if we are trying to achieve justice, we may
find that facts that appeared to be legally irrelevant are significant from a justice standpoint.
Since the rules of evidence are intended in the aggregate to promote justice, any one of
them is open to challenge or reinterpretation.

Questions
1. Recall Kelsen’s position that doing justice is deciding a case according to the law.
What if “the law” leads to an unjust result? Imagine a judge in a country (it could be any
country, including your own) who, in deciding a case, finds that in her own view, the law
clearly points to a particular decision. But also in her view, the law is clearly unjust. Should
she decide the case according to the law or according to justice? (We will return to this
question in the last chapter.)
2. Which of the following reasons more closely reflects your own decision to become
a lawyer: (a) to faithfully serve the law of the land? (b) to help achieve justice in society?
 29

A Fair Jury
CHAPTER TWO

2.1 Improper argument

There is a common saying, “Justice is blind.” What does it mean? Is the person making
the statement criticizing justice? Or praising it? Should justice be blind? If not entirely,
should justice wear blinders^
Laypersons as well as lawyers are well aware, from television shows such as Perry
Mason and L.A. Law and from numerous books and magazines, that there are strict controls
over what can be said in a courtroom. Lawyers are always saying, “Objection, your honor!”
and the judge often says, “Objection sustained. The jury is instructed to disregard the
preceding remarks.”
There are lengthy and detailed rules of evidence that govern what can be said and what

can’t be said in court. What is the point of all of this? Why can’t people just say what
they want to say? Why isn’t a litigant allowed to make any argument whatsoever that she
believes would be helpful to her case? Why isn’t the other side given the same degree of
latitude?

In fact, the rules of evidence impose strict “blinders” on the jury. The jury is not
allowed to hear everything a litigant wants it to hear, because of the fear that injustice
might result. We apparently want a jury with blinders and earmuffs.
But how narrowly should the jury’s vision be constrained with those blinders? How
much or how little should the jury be permitted to hear? Should the jury be allowed to
see the litigants and the witnesses? Should the jury be allowed to discover anything about
the case outside the courtroom?
Should courtrooms try to depersonalize lawsuits? Recall that in English courts the
judges and the advocates wear wigs. Do the wigs tend to depersonalize the judges and
lawyers, so that less attention will be drawn to their personal characteristics with greater
resulting attention paid to the quality of their arguments? If so, might this not have a
detrimental effect upon litigants who need emotional and empathetic understanding in order
to persuade the fact-finder of the merits of their cause? Or, on the contrary, does it contribute
to an “even playing field”?
When we consider how little or how much the jury can be told about a case, we have
to consider not on\y factual material (such as the reputation and character of the witnesses).
JUSTICE AND THE LEGAL SYSTEM

but also legal material, such as the legal rules that apply to the case. To a large extent, we
want juries to decide /(2c/5 and not law. But is it possible to confine the jury’s role to fact¬
finding? Doesn’t the underlying law of a case characterize the facts? And, in turn, doesn’t
the underlying justice of a case characterize the law?
At the end of each trial, the opposing lawyers are permitted to make “closing argu¬
ments’’ to the jury. The attorneys sum up their views of the evidence that the jury has seen
and heard, characterizing that evidence in the light most favorable to their own clients’
interest. The moment of legal decision is almost at hand. The jury is about to retire into
a secure and secluded room. Everything that has been said at the trial about facts, and
everything that has been said about the law, now boil down just to assertions and rhetoric.
It is up to the jury to render a verdict based upon justice.
But how can a jury know what justice is when, in the name of justice, they have not
been allowed to see or hear certain things? This question is equivalent to using “justice is
blind” as a criticism. Maybe we should ask the opposite question: can a jury deliver a just
verdict only when what it has seen and what it has heard has not been contaminated by
irrelevant and prejudicial evidence?
Questions such as these have been asked throughout the history of legal systems. The
answers may change as perceptions about justice change. The questions in a sense are more
enduring than the answers. Yet questions are worthless unless we try to answer them. In
the cases and materials that follow, you are invited to reflect upon how the present legal
system in the United States has attempted to answer — or perhaps in some instances to avoid
answering — these and related questions.

Rojas V. Richardson (Rojas I)

703 F.2d 186
United States Court of Appeals,
Fifth Circuit
April 21, 1983
Rehearing Granted Aug. 29, 1983

Gregory L. Ceshker, Julianne May Young, Richardson and another employee for the day’s
Dallas, Texas, for plaintiff-appellant. work. Richardson furnished Rojas with a horse
named Jet. Rojas had ridden this horse a few times
Richard Grainger, Tyler, Texas, for defen-
before. When Rojas mounted Jet, the horse began
dants-appellees.
bucking and running. Rojas finally was thrown
Appeal from the United States District Court from the horse and severely injured. Rojas later
for the Eastern District of Texas. filed this suit in federal district court against

Before RUBIN, JOHNSON and WIL¬ Richardson, McGee, and the partnership, invok¬
LIAMS, Circuit Judges. ing diversity jurisdiction, 28 U.S.C. § 1332(a)(2).
Rojas claimed negligence in furnishing an inad¬
JERRE S. WILLIAMS, Circuit Judge.
equately broken horse with a dangerous bridle. In
Paulino Izaguirre Rojas worked as a ranch addition, he claimed a failure to give reasonable
hand for Robert Richardson, a partner in the M warnings regarding the dangers of the horse or
and R Cattle Company along with Kenneth its bridle. In the alternative, he sought payment
McGee. On December 4, 1980, Rojas met with of his medical expenses under the terms of his
 A Fair Jury 31

oral employment contract. The defendants denied in limine would have barred the use of testimony
these claims and countered with a defense of con¬
concerning the status of Rojas as a “wetback” or
tributory negligence. After a full trial, the jury illegal alien, and the presentation of any evidence
returned a verdict for the defendants. that the witnesses in the case ever employed
Rojas brings a timely appeal, primarily seek¬
undocumented workers.* These two paragraphs
ing a new trial based on irreparable jury prejudice
of the motion in limine were denied.* Rojas
from the defense counsel’s reference during closing claims, first, that the denial of the motion in
argument to Rojas as an illegal alien. ... We
limine is an appealable error in its own right, and,
reverse and remand on the basis of defense coun¬
second, that the request for the motion in limine
sel’s incendiary remarks to the jury during closing should be sufficient to preserve the error regarding
argument.
defense counsel’s use of the term illegal alien.
Objections to Closing Argument First, we conclude that the denial of the
Rojas’ major argument is that defense coun¬ motion in limine is not a sufficient ground for
sel tainted the propriety of the trial by reference reversal in this case. Denial of a motion in limine
to Rojas as an illegal alien. Rojas claims that
rarely imposes a serious hardship on the request¬
identification as an illegal alien was unsupported ing party, since the affected party can make a
in the evidence, completely irrelevant to the issues subsequent objection if the evidence is ever offered
before the court, and inherently prejudicial to a at trial. That later objection is the better time to
full and fair hearing on the merits. Rojas asserts evaluate the possible exclusion of testimony
the emotional weight of the remark by pointing
because it is at that time that the claims of prej¬
out that the public education for undocumented
udice and irrelevance move out of the abstract
aliens case. Doe v. Plyler, 628 F.2d 448 (5th Cir.
context of a motion in limine into the real world
1980), aff’d, 457 U.S. 202 (1982), dealt with the of an actual speaker and a specific statement. In
school district from Tyler, Texas, where the trial
the case before us, there is no particular injury
in this case was held. Doe v. Plyler was pending
in the United States Supreme Court when the trial claimed from the denial of the motion in limine
was held. Rojas urges that the improper argument other than that connected with the admission of
was directed especially toward the jury foreman, later statements referring to Rojas as an illegal
an employee of the TVler Independent School Dis¬ alien. We find the issue better framed by the
trict. He urges that any general prejudice of the “actual — instead of hypothetical — circumstances
jurors toward undocumented workers likely would at trial.” Collins v. Wayne Corp., 621 F.2d 111,
have operated against him in this civil trial.
The employers have no serious counter to
the substance of these charges. Rather, they claim
that this issue was not preserved for appeal
2 The pertinent part of plaintiff’s first motion in
because no objection was made in the district limine provided:
court to use of the term “illegal alien.” II
We have checked the trial record carefully, Whether the Plaintiff was or ever has
and indeed find no objection during trial to use
been in the United States illegally, was a “wet¬
of the term “illegal alien.” Rojas directs our atten¬ back” or has ever been in the United States
tion to his request for a motion in limine made
without proper authorization and/or docu¬
before trial.’ Paragraphs 2 and 3 of this motion mentation or the mode or manner in which he
physically came into the United States prior to
his injuries made the basis of this suit.
’ A “motion in limine” is a pre-trial request for III
an order to suppress evidence at trial. Advance sup¬ Whether any witness employs or has
pression of evidence requires blanket exclusion, since
employed workers who are illegal aliens, “wet¬
the judge is not ruling in response to an actual objection
backs” or are in the United States illegally or
to a single question. Authority for the motion in limine
without proper authorization and/or docu¬
cannot be found in any of the published rules governing mentation.
federal civil procedure — either the Federal Rules of Civil
Procedure or local rules promulgated by each panel of 3 All other portions of the plaintiff’s motion in
United States district courts. The motion belongs instead limine, and all parts of the defendants’ motion in limine,
were granted. These portions of the motions are not at
to the vast non-statutory (“common”) law of procedure. issue in this case.
[Eds.]
JUSTICE AND THE LEGAL SYSTEM

784 (5th Cir. 1980). Consequently, we look at the Rojas relies upon the case of Reyes v. Mis¬
error, if any, committed when the actual state¬ souri Pac. R.R. Co., 589 F.2d 791 (5th Cir. 1979),
ments regarding alienage were admitted, rather in an attempt to carve a broad exception out of
than when the blanket hypothetical requests to Collins. In Reyes, the plaintiff brought negligence
limit such statements were denied during pretrial claims against a railroad after he was run over
motions.
by a train. The railroad claimed that Reyes was
Rojas urges that the motion in limine itself drunk on the night in question and had fallen
was a sufficient presentation of his concerns to asleep on the tracks. During pretrial proceedings,
the district court to preserve the assignment of Reyes made a motion in limine to exclude evidence
error on appeal. This Circuit, however, has held relating to four prior convictions for public intox¬
otherwise. In Collins v. Wayne Corp., supra, the ication. The motion was denied. Reyes then pre¬
defendant corporation in a products liability sented that evidence himself to the jury and later
action had cross-examined the plaintiff’s expert appealed the use of that evidence at trial.
witness regarding his fees in prior cases. No objec¬
This Circuit allowed such an appeal, reject¬
tion was made at trial, although the plaintiffs had
tried to suppress such testimony through a pretrial ing the railroad’s suggestion that Reyes had waived
error by volunteering the information rather than
motion in limine. Judge Johnson stated the gen¬
eral rule that an overruled motion in limine does objecting at trial. “After the trial court refused
not preserve error on appeal. to grant Reyes’ motion in limine to exclude the
evidence, he had no choice but to elicit this infor¬
Plaintiff’s counsel never objected to mation on direct examination in an effort to ame¬
cross-examination of Severy about fees he liorate its prejudicial effect. Error was sufficiently
had earned in prior cases. Plaintiffs therefore preserved by making the motion in limine. See
cannot predicate error on this cross-exami¬ Fed.R.Evid. 103, 28 U.S.C.A.” Id. at 793 n.2.
nation. Fed.R.Evid. 103(a)(1). The overruling Reyes, however, stands only as an example
of a motion in limine is not reversible error; of the general rule, not as a departure. Objection
only a proper objection at trial can preserve must be made in the trial court unless a good
error for appellate review. Motions in limine reason exists not to do so. In Reyes, the good
are frequently made in the abstract and in reason was a valid trial strategy to attempt to
anticipation of some hypothetical circum¬ soften the blow of damaging information by deliv¬
stance that may not develop at trial. When
ering the independent punch to the jury. An objec¬
a party files numerous motions in limine,
tion to one’s own testimony is an absurdity. It is
the trial court may not pay close attention impossible. This Circuit consequently found the
to each one, believing that many of them are
offensive use of damaging information to fall out¬
purely hypothetical. Thus, a party whose side the general rule requiring a timely objection.
motion in limine has been overruled must
Rojas, however, offers no justification for his
object when the error he sought to prevent
with his motion is about to occur at trial. failure to object. He made no offensive use of his
status within this country, whatever that status
This will give the trial court an opportunity
may be. He makes no other claim of good cause
to reconsider the grounds of the motion in
for not raising the objection at trial. In the absence
light of the actual — instead of hypothetical — of such a showing we have no choice but to find
circumstances at trial.
that he cannot claim an objection was lodged to
Id. at 784.
the use of the phrase “illegal alien.’’ Fed.R.Evid.
The general rule is that where “no good rea¬ 103(a)(1). See Brown & Root, Inc. v. Big Rock
son is shown for the failure of appellant’s trial Corp., 383 F.2d 662 (5th Cir. 1967) (“improper”
counsel to object to the admission of evidence, and “inexcusable” appeals to sympathy and sec¬
to have been waived.’’ tional prejudices of the jury are not appealable
the objection is deemed
[Citing cases] absent a timely objection at trial). Rojas’ only
 A Fair Jury 33

possible recourse is establishing “plain error.”^ ously affect the fairness, integrity, or public
reputation of judicial proceedings.
Closing Argument as Plain Error
United States v. Atkinson, 297 U.S. 157, 160, 56
Even if Rojas has waived his right to appeal
S.Ct. 391, 392, 80 L.Ed. 555 (1936) (emphasis
the use of the phrase “illegal alien”, however, this
Court is not precluded from reviewing the use of added). Following the clarion call of Justice
the phrase at trial. Fed.R.Evid. 103(d) provides: Stone’s words, we must hold that the “fairness,
“Nothing in this rule [requiring objection to pre¬ integrity, or public reputation” of the proceedings
serve appealability] precludes taking notice of in this case were adversely affected by the closing
plain errors affecting substantial rights although jury argument of defense counsel. The closing
remarks included this paragraph:
they were not brought to the attention of the
court.”* Our authority to review, we note, is lim¬ I hope — 1 hope — that you don’t, because Mr.
ited to “plain errors,” and the errors must affect Rojas is an alien, give him any more benefit
“substantial rights.” We find that allegations than you would any United States citizen
unsupported by the record that Rojas was an ille¬ who comes in this Court. If the situation
gal alien might well have a serious and negative
were reversed and you or 1 were in Mexico —
effect on his substantial right to an impartial jury. were illegal aliens in Mexico — I would hope
The only serious issue is whether the allegations Mexico would open up their Courts, would
rise to the level of “plain error.” open up their job market, would open up
The plain error rule is “not a run-of-the-mill their public schools, would open up their
remedy.” [Citing cases] It is invoked “only in State hospitals, as we have in this country
exceptional circumstances to avoid a miscarriage
for Mr. Rojas. Certainly he is — I’m not say¬
of justice.” [Citing cases] The exact delineation ing we shouldn’t do those things, but he
of plain error is difficult to articulate. We have
shouldn’t be entitled to any extra benefits
defined plain error as error which is “both obvious because he is an illegal alien in this country
and substantial.” [Citing cases] But such elegant than would any other citizen of the United
phraseology yields little guidance. The determi¬ States be entitled.
nation still rests ultimately on the facts of each
case. These remarks prejudiced the jury on two
Perhaps the most telling guidelines were laid counts. First, by introducing irrelevant and
down by Justice Stone in 1936, when he wrote: unproven allegations that Rojas was an illegal
alien, the defense clearly was appealing to the
In exceptional circumstances, especially in prejudice and bias of members of the jury on the
criminal cases, appellate courts, in the public basis of national origin. Although there was jus¬
interest, may, of their motion, notice errors
tification for presenting Rojas’ Mexican citizen¬
to which no exception has been taken, if the ship to the jury to establish diversity jurisdiction,
errors are obvious, or if they otherwise seri¬
28 U.S.C. § 1332(a)(2), his status as an “illegal”
alien was completely irrelevant to the negligence
claims the jury was to evaluate. Furthermore, the
closing reference to “illegal alien” could have
* Judge Rubin joins in this opinion because Collins placed a prejudicial gloss on the many references
is the law of the circuit. However, should the issue be
again properly presented, he would vote to reconsider
throughout trial to Rojas as an “alien.” Having
laid a strong foundation through use of the term
Collins. Objections in limine, fully briefed and argued
at a time when they can be given adequate consideration “alien” throughout trial, even counsel’s single ref¬
erence to the incendiary, derogatory expression
by both counsel and the court, deserve to be encouraged,
in preference to the cryptic objections hurriedly argued “illegal alien” is prejudicial. Finally, the allega¬
and hastily ruled on at trial, unless the circumstances tion that Rojas was in the country illegally is
are such that a ruling can properly be made only at the unsupported in the record.
trial. Texas courts have found plain error in jury
5 The rule has its source in Rule 52(b) of the Federal remarks that appeal to racial or ethnic bias. Pen-
Rules of Criminal Procedure. Advisory Committee ate V. Berry, 348 S.W.2d 167 (Tex.Civ.App.— El
Notes, Fed. R. Evid. 103.
Paso 1961, writ ref’d n.r.e.), involved remarks to
JUSTICE AND THE LEGAL SYSTEM

the jury that an alien has no right to “come into to be dealt with as equals in a Court of
court and reach your hands into the pockets of Justice.
an American citizen. ...” The court reversed and
While its wording might have been adequate
remanded for new trial, despite absence of a timely
to indicate that aliens must be treated equally, it
objection at trial. See also Texas Employers’
was not adequate to tell the jury that “illegal
Insurance Ass’n v. Jones, 361 S.W.2d 725 (Tex.
aliens” are “equal before the law.” A jury could
Civ.App. — Waco 1962, writ ref’d n.r.e.) (claims
to racial or religious prejudice justify new trial). readily conclude that someone who is “illegal” is
Second, these remarks were an impermissible not “equal before the law” to law abiding citizens
and jurors. We are not convinced that the jury
invocation of the “golden rule” argument. As we
recently explained. instruction could rebuild the “fairness, integrity,
or public reputation of jury proceedings” that
What every lawyer should know is that a plea Justice Stone admonished us to protect, see Atkin¬
to the jury that they “should put themselves son, 297 U.S. at 160, 56 S.Ct. at 392. As we first
in the shoes of the plaintiff and do unto him noted in Dunn v. United States, 307 F.2d 883, 887
as they would have done unto them under (5th Cir. 1962), “if you throw a skunk into the
similar circumstances. ...” [is] improper jury box, you can’t instruct the jury not to smell
because it encourages the jury to depart from it.” Some references are so prejudicial that it is
neutrality and to decide the case on the basis difficult for curative instructions to resuscitate
of personal interest and bias rather than on fairness. See e.g.. Pride Transport Co. v. Hughes,
the evidence. 591 S.W.2d 631 (Tex. Civ.App. — Eastland 1979,
Loose V. Offshore Navigation, Inc., 670 F.2d 493, writ ref’d n.r.e.) (disclosure of defendant’s insur¬
ance coverage can be grounds for mistrial in
496 (5th Cir. 1982) .... The fact that the statement
in this case was an inverse incantation of this Texas). Even assuming that a proper jury instruc¬
tion could have cured prejudice, this instruction
golden rule is insufficient to validate the partiality did not do so.
inherent in the argument. Loose, supra. The
We hold that the obvious and blatant appeal
“golden rule” argument, while not plain error, is in this case to racial and ethnic prejudice is plain
normally ground for new trial. Id.
error. In consideration of this impropriety, com¬
The closing remarks of defense counsel were
highly prejudicial and a blatant appeal to jury bined with an additional “golden rule” appeal to
bias. Although the district court gave a jury the jury’s partiality, we must reverse the judgment
of the district court and order a new trial.
instruction emphasizing equal access to justice,
even this instruction was ambiguous. The jury was Conclusion
instructed: We have examined other exceptions to the
manner in which the trial was conducted and find
You are instructed that all persons are equal
before the law, and this case should be con¬ no further grounds for reversal. There is substan¬
sidered and decided by you as an action tial evidence to support the jury verdict in this
between persons of equal standing in the case. However, on the basis of the defendants’
community, of equal worth, and holding the closing references to Rojas as an “illegal alien”
same or similar stations in life. The law is and their appeal to jury prejudice, we must reverse
the judgment of the district court and remand for
no respecter of persons. All persons, includ¬ new trial.
ing partnerships, and other lawful organi¬
zations, stand equal before the law, and are REVERSED AND REMANDED.
 A Fair Jury 35

Rojas V. Richardson (Rojas II)

713 F.2d 116
United States Court of Appeals,
Fifth Circuit
August 29, 1983

Appeal from the United States District Court the jury that we reversed and remanded for a new
for the Eastern District of Texas. trial even though no objection had been made by
Before RUBIN, JOHNSON and WIL¬ the plaintiff’s counsel at the time the argument
LIAMS, Circuit Judges. was advanced. To reach this result, therefore, we
had to find that allowing the argument to go to
ON PETITION FOR REHEARING
the jury was “plain error” on the part of the
JERRE S. WILLIAMS, Circuit Judge. district court. On motion for rehearing, defendant
This suit involves a claim by Paulino Iza- Richardson brings to our attention an important
guirre Rojas, who worked as a ranchhand for Rob¬ aspect of this case which was not in the record
ert Richardson, a partner in the M and R Cattle and was not referred to in the briefs, although
Company. On December 4, 1980, while at work, the briefs focused upon the reference to “illegal
Rojas was thrown from the horse he was riding alien.” The defendant on rehearing supplemented
and severely injured. He brought this suit in fed¬ the record with the transcript of the proceedings
eral court invoking diversity jurisdiction. He on voir dire. Those proceedings made clear that
claimed negligence in furnishing him with a dan¬ it was made known to the prospective jurors at
gerous horse and bridle. After a full trial, the jury that time that plaintiff, Rojas, was an “illegal
returned a verdict denying him recovery.
In our prior opinion {Rojas /] we reversed The sequence of events under which this
the district court and remanded for a new trial occurred is revealed by the supplemented record.
alien.”
on the ground that counsel for the defendant in The trial court overruled the plaintiff’s motion in
closing argument made reference to Rojas as an limine to bar reference to plaintiff as an illegal
alien at the trial. No exception was taken to this
“illegal alien,” coupling that argument with the
Golden Rule argument: “If the situation were ruling by plaintiff’s counsel. The voir dire began
reversed and you or I were in Mexico — were illegal immediately, on the same day. It appears clear
aliens in Mexico — I would hope Mexico would that as a matter of tactics, the plaintiff’s attorney
open up their Courts, would open up their job himself brought to the attention of the jury the
market, would open up their public schools, fact that the plaintiff was an illegal alien as an
would open up their State hospitals, as we have obvious means of heading off a later dramatic
in this country for Mr. Rojas.” He then went on presentation of this fact by the defendant. The
to say that Mr. Rojas “shouldn’t be entitled to motion for rehearing also points out that there
any extra benefits because he is an illegal alien was one brief mention during trial of the fact that
in this country than would any other citizen of Rojas was an alien “without papers” and, there¬
the United States be entitled.” fore, was “as we say ‘an illegal alien.’” This one
It was known throughout the trial that Rojas brief and casual mention in the record is the only
was a citizen of Mexico since the jurisdiction of reference to the fact that plaintiff was an undo¬
the court was based upon this fact. But as the cumented alien in the entire record after the voir
case was presented to this Court by the briefs of dire until the closing argument by counsel for the
both parties, the entire trial was devoid of any defendant.
reference to Rojas being an “illegal alien” until The critical point, however, is that contrary
the closing argument of the counsel for the to the way the case was presented to the panel in
defense. Under these circumstances, we found the the briefs of the parties, the jury was aware
argument detailed above so highly prejudicial to throughout the entire case that the plaintiff Rojas
JUSTICE AND THE LEGAL SYSTEM

was an “illegal alien.” The major ground upon ment. Plain error is not a “run of the mill rem¬
which we found the argument so prejudicial as to edy”. United States v. Gerald, supra, 624 F.2d at
be plain error thus has been removed by the sup¬ 1299. It is invoked “only in exceptional circum¬
plementing of the record and our consideration stances to avoid a miscarriage of justice.” Eaton
of the voir dire examination. V. United States, 398 F.2d 485, 486 (5th Cir.), cert,

In our prior opinion we referred to the argu¬ denied, 393 U.S. 937. We cannot find exceptional
ment as “highly prejudicial and a blatant appeal circumstances once it is shown to us on rehearing
to jury bias.” We still characterize this argument that the jury knew throughout the trial that Rojas
with these terms. But in view of the knowledge had the status of an illegal alien.
which the jury had throughout the trial as to plain¬ We therefore GRANT the motion for rehear¬
tiff’s legal status, we cannot find that in the ing, and upon rehearing we set aside our earlier
absence of objection by plaintiff’s counsel this decision and AFFIRM the judgment of the district
argument was so prejudicial as to be plain error, court.
even when coupled with the Golden Rule argu¬ AFFIRMED.

Federal Rules of Evidence

Rule 401. Definition of “Relevant Evidence’’ \

“Relevant evidence” means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution

of the United States, by Act of Congress, by these rules, or by other rules prescribed by
the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not
admissible.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste

of Time

Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of cumu¬
lative evidence.

Notes and Questions

1. Rojas was in Mexico when he filed his action against Richardson. The ranchers—
Robert Richardson and Kenneth McGee— are prominent citizens in Tyler. Rojas worked as
a ranchhand for their firm, the M and R Cattle Company. Work on a ranch, unlike a farm,
is not seasonal. Some ranchhands stay for a month or two; others stay for years.
Undocumented aliens earn wages that average considerably lower than documented
aliens or citizens. The average annual income of an undocumented alien, at the time of
 A Fair Jury 37

the Rojas case, was $7,000.*

2. Appellate courts are reluctant to order a new trial when counsel does not make a
contemporaneous objection to the alleged error. Yet trial lawyers often dislike objecting
frequently in front of jurors, who may get the impression from the objections that the
lawyer is uncooperative, has something to hide, or is generally an unpleasant person.
Moreover, an objection denied draws attention to the response to the question. Jurors may
give more weight to the response — listen more carefully to it, think of it as especially relevant.
Yet every American system of procedure requires lawyers to object to questions in order to
preserve the right to appeal a judge’s error in permitting the question.
Consider the costs of re-trying a case. Had the lawyer made a timely objection, the
judge could have corrected error in the proceedings right then and there. Failure to object
wastes scarce resources. Also, if the appeals court reverses a decision where prejudicial
evidence came up at trial but was not objected to by the party who now complains on
appeal about the prejudice, then future attorneys will be encouraged not to make objections
at trial. Will they not calculate that (1) the jury may give them the decision anyway, and

(2) if the jury doesn’t, they can always appeal the case on the ground of prejudice? Doesn’t
allowing an appeal without objection permit attorneys to “play both sides of the street’’?
3. What was the role of the “motion in limine’’? Judges disfavor such motions, which
ask them to rule wholesale on testimonial admissibility in advance of trial. They prefer
instead, as Judge Williams explains in Rojas, to rule retail on actual objections to single
questions in a concrete line of questions. Only a line of questions in flight reveals exactly
where the testimony they elicit is landing. Even so, orders in limine are appropriate for two
purposes:

(1) to sharpen or clarify terms of the pre-trial order — the screenplay judges compose
beforehand to set down the roles witnesses and documents will play at trial so that
there will be no surprise.^ A lawyer concerned that a pre-trial order will permit his
adversary to ask irrelevant and injurious questions uses a motion in limine to have the
scope of the pre-trial order narrowed. The pre-trial order states what testimony the
judge will permit; the order in limine, the testimony she will not permit out of all the
testimony she is permitting;
(2) to forbid questions designed to elicit testimony that will prejudice a party.
Unanswered questions accomplish prejudice simply by inducing an adversary to object
to them on the grounds of prejudice.

4. Rojas’ attorney was familiar with the Reyes precedent.® Were Rojas’ rights clear

See E. Harwood, In Liberty’s Shadow 14 (1986).

^ Rule 16(e) of the Federal Rules of Civil Procedure requires federal trial judges to issue a pre-trial order on
the eve of trial after conferring with the parties, listing documents each party plans to introduce, witnesses each
will examine, and summarizing testimony each party expects to elicit from the witnesses. Parties may not casually
depart from the scenario of the order.

® In a telephone conversation on August 3, 1987, Rojas’ trial lawyer, Gregory Ceshker, Esq., told one of the
authors that he made a deliberate decision not to raise an objection to his opponent’s inflammatory argument to
the jury, relying consciously and directly on Reyes.
JUSTICE AND THE LEGAL SYSTEM

under Reyesl Can we distinguish Rojasl In Rojas II why didn’t Judge Williams also revisit
the Reyes branch of Rojas /? Is the reliability of the Reyes exception to the rule in Collins
clear after Rojas III
Should the appeals court have overruled Reyesl Or Collinsl (Note Judge Rubin’s
suggestion in a Note in Rojas I.) Suppose your answer is “Yes, Reyes should have been
overruled.’’ Where does that leave Rojas? Isn’t he being sacrificed just because
his case
happens to be the occasion by which the court wants to announce its overruling of Reyesl
Would that be fair?

Should your answer turn on Rojas’ reasonable expectations? Did his attorneys reason¬
ably expect to be able to rely on Reyesl Should they have known that Reyes was an inherently
unstable case, one that would be overruled as soon as the court realized that it allowed
attorneys to play both sides of the street? But shouldn’t attorneys always be allowed to rely
on direct precedent? Should a court ever overrule one of its precedents? We will be taking
up these and related questions in a later chapter on Retroactivity.
5. Can we explain the result of Rojas II simply on the ground that the appeals court
was so upset that counsel had not told the court all the facts during Rojas I (i.e., the facts
about the voir dire) that the court decided to “punish” Rojas’ attorneys by reversing Rojas
II If so, was Rojas the victim of a different kind of prejudice — intellectual prejudice by
the judges on the Court of Appeals? Or should the judges have properly been upset by
this failure of disclosure?

Why should Rojas’ attorneys be “punished” at all? Wasn’t it primarily the fault of
the defendant’s attorneys that they did not tell the Court of Appeals in Rojas I that the
issue of illegal alienage came up during the voir dire? Wasn’t it their burden to argue that
their closing argument was not prejudicial because of what had happened during voir dire?
If so, why did the Court “reward” them by rescinding its previous order for a new trial?
Should justice to a client depend so directly on procedural decisions a lawyer has made
or failed to make? On broader and subtler differences of lawyering? Is the court’s role to
supervise the rules of a game, whose results we support because the game has been played
correctly? Or to find the truth about the dispute between parties, even though their lawyers

misplay the game?’

6. Was the argument of the ranchers’ lawyer objectionable simply because he referred
to Rojas as an “illegal alien,” or because he made statements about illegal aliens that were
calculated to inflame the prejudice of the jury? If the latter, should the jurors’ awareness
of Rojas’ status as a result of the voir dire render the appeal to prejudice less harmful?
7. In Rojas I Judge Williams quotes Justice Stone’s “guidelines” for appellate courts
“noticing” errors to which no exception has been taken. Appellate courts may notice error

’ As you analyze the ranchers’ lawyer’s argument in terms of Rule 403 of the Federal Rules of Evidence,
consider whether the argument was at all relevant. Prior to 1952 Rojas’ status as an undocumented alien might
have been relevant, because .some courts were refusing the requests of undocumented aliens to enforce contracts.
Then, Richardson might have defended on the ground that Rojas lacked the capacity to sue. In 1952 Congress
ended the debility under contract, in part because employers (against whom sanctions were heavy) out of wages.
By 1983 testimony about Rojas’ status would not have been relevant to determining the validity of his contract
of employment with Richardson. Would it have been relevant to the contents of the contract?
 A Fair Jury 39

only “[i]n exceptional circumstances ... in the public interest.” In other words, when the
sole consequence of tolerating error is unfairness to a litigant whose lawyer failed to object,
the appeals court won’t save the lawyer’s skin by noticing error. Why not?
A further condition on the appeals court’s power, according to Justice Stone, is that
errors must either be obvious or they must “seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Whether or not the error in Rojas’ trial was obvious
(why should “obviousness” be a criterion?). Judge Williams holds “that the fairness,
integrity, or public reputation of the proceedings in this case were adversely affected by the
closing jury argument of the defense counsel.” Isn’t the judge deciding in the first opinion
to send the case back to trial in Tyler, not because the argument of the ranchers’ lawyer
harmed Rojas, but because arguments of the sort he made “seriously affect the fairness,
integrity, or public reputation of judicial proceedings”? The plain error rule, remember,
does not save parties for their own sake, but for the sake of the “public reputation of
judicial proceedings.”
Why then in the rehearing opinion does Judge Williams conclude that “[w]e cannot
find exceptional circumstances once it is shown to us on rehearing that the jury knew
throughout the trial that Rojas had the status of an illegal alien”?
8. Would Judge Williams have preferred to destroy all copies of his first opinion, and
simply issue a new one that would be published for the world to read?
In a celebrated case involving claims against a psychotherapist, the California Supreme
Court issued a full opinion, reported as Tarasoff v. Regents of Univ. of Cal. , 529 P.2d 553,
118 Cal. Rptr. 129 (1974), then granted a rehearing and issued a full opinion two years
later, reported in 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976). As you can see
from these citations, the first opinion was not printed in the official reports of the California
Supreme Court whereas the second opinion was. Interestingly, the second opinion makes
no mention of or reference to the first. To be sure, the second opinion is not a drastic
departure; it retains the basic holding, but with some differences, including a change from
liability to no-liability of the California police who were one of the defendants. Apparently
the California Supreme Court used its authority to keep the first opinion out of the official
state Supreme Court reports, but could not undo the fact that the first opinion had been
reported in the commercial reporter systems.
Should courts ever have the power to delete a prior opinion from the public records?
Should they have the power, which apparently many courts exercise today, to withhold an
opinion from publication entirely?
9. Rojas became a quadriplegic as a result of his accident.’® Though the University of
Texas hospital at Tyler cared for him, Texas and federal medical assistance programs do
not reimburse hospitals for the treatment of undocumented aliens.” The hospital would
thus have put a “hospital lien” on any judgment Rojas won against the ranchers. The
hospital’s “shadow” on the litigation made settlement all the more difficult.

1° Telephone conversation of August 3, 1987 with Gregory Ceshker, Esq.

” Local hospitals in Tyler, as in other parts of the country, never ask questions about residency status.
According to a physician practicing in Tyler, hospitals never turn in patients known to be undocumented aliens.
JUSTICE AND THE LEGAL SYSTEM

10. Was justice done to Rojas? To the ranchers?

Comment on Procedural Justice, Queues and Lotteries

You may have been surprised how little in the two Rojas opinions seemed to turn on
dispensing justice to Rojas as an individual. You will meet this attitude of proceduralism
over and over in your practice of law; law often seems to tell us only how to make decisions
about disputes but not what decisions. The way to whether a decision is correct is to
scrutinize the application of procedures the legal system uses for deciding disputes of the
kind involved in that decision. If the legal personnel — lawyers and judges — correctly follow
the procedures, then the decision is legally correct, even if we have independent reason to
know that it is not correct. If the legal personnel do not correctly follow the procedures,
then the decision is incorrect, even if, for example, they departed from the procedures only
to get information assuring us that the procedurally flawed decision is correct.
John Rawls has distinguished three sorts of procedural justice.’^ Perfect procedural
justice assumes an independent criterion for deciding whether a result is just, and also a
procedure that is sure to give the just result. “To illustrate [perfect procedural justice],” he
writes,’®
consider the simplest case of fair division. A number of men are to divide a cake: assuming
that the fair division is an equal one, which procedure, if any, will give this outcome?
Technicalities aside, the obvious solution is to have one man divide the cake and get the
last piece, the others being allowed their pick before him. He will divide the cake equally,
since in this way he assures for himself the largest share possible.

Imperfect procedural justice assumes an independent criterion for correct outcomes, but no
feasible procedure which is sure to reach them. Rawls says that legal trials exemplify this
sort of procedural justice. Pure procedural justice assumes that there is no independent
criterion for the right result. All we have is a correct or fair procedure. Gambling, according
to Rawls, is an example of this sort of procedural justice.
Actually, two compelling notions of justice, which Rawls does not mention, flow from
or are associated with pure procedural justice. These are the Justice of lotteries and the
Justice of queues — two procedures for allocating scarce goods that seem to assume that
there is no independent criterion for the right result.
Queues dominate everyday life — lining up to buy theater tickets in Manhattan, or some
consumer goods in the Soviet Union (the Soviets have a journal devoted to the mathematical

study of queues). But queues also work powerfully in our legal system. “First in time first
in right” can be found everywhere in property law and in other guises, such as “priority”
in bankruptcy.’*

’2 See J. Rawls, A Theory of Justice 85-86 (1971).

13 Ibid., at 85.

i« See, e.g., Symposium, Time, Property Rights, and the Common Law, 64 Wash. U.L.Q. 661 (1986).
 A Fair Jury 41

The justice of queues, it is said, protects expectations that accumulate around the
undisturbed possession or use of a right over time. But doesn’t this beg the question? Why
do expectations accumulate? Also, queues protect priorities even when expectations may
not have time to accumulate, as when one title holder just beats out another to the registry
to record a deed.
One possibility is that queues promote desirable social policies. Take the race to record
a deed. Deed-holders who do not record are making it possible for dishonest grantors to
defraud some future victim. We want to reward deed-holders who record and punish those
who don’t. First-in-time is a sensible policy to accomplish just that. One can often come
up with social policy explanations of this sort. Often one can’t, however. And even when
one can, social policy is never the whole story. Look again at the race to the registry. The
race recording statutes give no mercy to an infant deed-holder, an infirm deed-holder, a
deed-holder whose car breaks down on the way to the registry, and so forth. Why not? Is
the social policy of cutting off the odd-ball fraud stronger than any excuse for not showing
up at the registry? Or, does the race statute also reflect a powerful vision of justice?
Another possibility is that queues form when we simply have no other rational way of
allocating a scarce resource. How could a theater rationally decide who gets in to see the
8:30 performance of a popular movie?’* The queue solves that problem. Queues are also
useful when a rational way of allocating a resource exists, but doing the allocation is too
costly, or more costly than the aggregate cost to the recipients of lining up. Or, an allocator
uses queues to shift the cost of allocation to recipients, making them spend time lining up,
even though their aggregate cost may be greater than the cost of rational allocation.
Another possibility is that queue justice supplies its own rational standard, appealing
on its own terms, competing with other standards. Lotteries, by contrast, are used when
we are frightened to make rational distinctions or do not believe that we can agree on the
distinctions, as, for example, when we allocate kidney dialysis. Lotteries provide a procedure
for maintaining equality — an equality of chances, when we cannot provide equality of
results.’* (Remember lotteries when we consider Bakke in Chapter 5.)

Courtroom Misconduct by Prosecutors and Trial Judges

Albert W. Altschuler’^

I believe that misconduct by a defense attorney can sometimes justify prosecutorial

behavior that would otherwise be improper. The test should not be whether the prosecutor

One possibility is the quasi-illegal phenomenon known as “scalping.” In some popular events, a customer
can show up at the last minute and buy a designated-seat ticket from a “ticket scalper” who charges an inflated
price (and thereby makes a profit) for the “convenience.”
On these matters, see Kornhauser and Sager, Just Lotteries, 27 Social Science Information 483 (1988).
’7 50 Texas L. Rev. 629, 637 (1972).
JUSTICE AND THE LEGAL SYSTEM

was “provoked” but whether the prosecutor’s action was reasonably designed to remedy
the wrong perpetrated by the defense.
Ordinarily, for example, it would be improper for a prosecutor to express his personal
belief in the defendant’s guilt or to suggest that the defense attorney had been biased by
his fee. Suppose, however, that a defense attorney had improperly told the jury that he
knew in his heart that the defendant was innocent, and that he would blame his own
inadequacies and never again enjoy a good night’s sleep if the defendant were convicted.
It would be unfair to confine the remedy for this misconduct to an instruction to the jury,
and to inform the prosecutor that he could not mention the incident at all in his own
remarks. The prosecutor should be able to go beyond the court’s formal instruction in
explaining why the defense attorney’s misconduct should be disregarded. Indeed, in the
course of his argument, I think that the prosecutor should be permitted to mention his
own belief in the defendant’s guilt and to suggest that the defense attorney had, after all,
been paid to think as favorably of the defendant as he could. It should be incumbent upon
the prosecutor, if he chose this course, to make it clear to the jurors that he was not urging
conviction on the basis of his personal opinions, but merely illustrating why full responsibility
for the ultimate decision belonged to the jury alone.

Notes and Questions

1. The brief excerpt you have just read raises many issues. First, why is it ethically
improper for an attorney to tell the jury what she personally believes? An attorney has,
after all, studied with great care the case she is presenting in court. She has probably formed
some definite opinions. Why is it normally improper for an attorney — whether in a criminal
case or a civil case — to tell the jury what she personally thinks?
2. If your answer to Question 1 is something along this line — that it is improper for
an attorney to voice her personal opinion to the jury because that would simply invite the

attorney on the opposite side to voice his personal opinion to the jury — why isn’t it a net
gain for the cause of justice to allow both attorneys to express their personal beliefs?
3. If, instead, your answer to Question 1 is something along this line — that what
attorneys believe is irrelevant to the law— what is it about “law” that should exclude the
personal belief of attorneys? Isn’t that what might be wrong with the law?
4. Perhaps, instead, your answer to Question 1 was that a trial should not be a sincerity
contest between opposing attorneys. Jurors should not be swayed by what the attorneys
believe, because the attorney who gives the appearance of being the more sincere will be
the one who prevails. A trial should be a search for truth, and not a contest as to who is
the better actor.’®
Suppose, then, that this was your answer to Question 1. If so, how would you criticize
Altschuler’s argument that if the defense attorney tells the jury what he believes, then the

18 Marlon Brando is reported to have made the following remark about theatrical acting ability: “What you
need to be a great actor is realism, sincerity, honesty, and truth. If you can fake these things, you ve got it made.
 A Fair Jury 43

prosecutor should also be allowed to tell the jury what he believes? (Most courts, by the
way, have allowed the prosecutor to make improper arguments in retaliation for improper
remarks by defense counsel under what has come to be known as the “invited response”
rule.)
Suppose we know nothing about the comparative acting abilities of prosecutor and.
defense counsel. Nevertheless, who is more likely to convince a jury of the sincerity of his

or her belief? Isn’t the jury almost always more likely to believe the prosecutor"] The
prosecutor, after all, is a public servant. As such, she would not be “wasting her time”
prosecuting this defendant if she did not believe that the defendant was guilty. If she tells
the jury that she believes the defendant is in fact guilty, isn’t the jury more likely to believe
her? Juries, after all, know that criminal defendants can hire their own counsel (maybe
with funds that they have illegally acquired). So aren’t juries more likely to discount what
the defense counsel believes than discount what the prosecutor believes?
5. Altschuler obviously doesn’t want the prosecutor to go too far in mentioning his
own belief of the defendant’s guilt as an “invited response” to the defense attorney’s tactics.
Altschuler says that the prosecutor should mention to the jury that he is not in fact urging
conviction on the basis of his personal opinion. Is the jury likely to understand this kind
of hedging on the part of the prosecutor?
What if the prosecutor goes too far? What if the prosecutor simply waits for the defense
attorney to make a slip, and then uses the “invited response” doctrine to launch into a
prejudicial tirade against the defendant? In a recent case, a defendant was on a weekend
furlough from prison when a brutal crime was committed. The defendant was prosecuted
for the crime. The prosecutor argued to the jury that the jury should vote for the death
sentence because that would be the only guarantee that this defendant would not be fur¬
loughed again and commit another murder. The prosecutor said to the jury;

I will ask you to advise the Court to give him death. That’s the only way that I know that
he is not going to get out on the public. It’s the only way I know. It’s the only way I can
be sure of it. It’s the only way that anybody can be sure of it now.

The Supreme Court, however, sustained the conviction on a broad reading of the “invited
response” theory. Darden v. Wainwright, 477 U.S. 168 (1986).
6. Clearly, a prosecutor can go too far. Suppose, for example, a prosecutor says to
the jury during closing argument: “We’ve shown you a lot of evidence that proves this
defendant guilty. But I can tell you that I’ve seen a lot more evidence than we’ve had time
to show you in court, a lot of additional evidence, and other eyewitnesses to the crime,
and that evidence conclusively shows, and those eyewitnesses conclusively proved to me,
that the defendant is guilty beyond any doubt whatsoever.” This kind of statement, under
present law, will probably be held to constitute a denial of due process. If the jury convicts
the defendant, a reviewing court will probably reverse the conviction and remand for a new
trial.
Now, suppose a defense attorney tells the jury the following during closing argument:
“The evidence shows that the defendant was not at the scene of the crime when the murder
was committed. Well, where was he, then? I can tell you where he was. He was at O’Hare
Airport, in a conference room, participating in an interdenominational seminar on the
future of religion in the United States. With him at the seminar were a priest, a deacon.
JUSTICE AND THE LEGAL SYSTEM

and a rabbi. These three gentlemen subsequently went back to their home states — California
,
Louisiana, and Massachusetts. They couldn’t be at this trial today because of their work
on behalf of God. But 1 met with each of them, and they swore to me that the defendant
on trial today was with them all during that seminar, which was at the exact hour and
minute and second that the murder was being committed fifty miles away from O’Hare
Airport. I met with Father William O’Shamrock in Boston, I met with Rabbi Israel Ginzburg
in Los Angeles, and I talked for an hour and a half on the phone with Deacon Percival
Parker from Baton Rouge, and each of them swore to me that this defendant was with
them on the fateful morning of the crime.”
Suppose the jury acquits the defendant. Now what? The answer is — nothing. There
can be no reversal on appeal because of the prejudicial and improper remarks by defense
counsel, because under the American legal system,” once a jury has rendered a verdict of
acquittal, a defendant cannot be tried again for the same crime.
Thus, while the case reports contain many cases of prosecutorial misconduct, there is
very little mention of the misconduct of defense counsel. When defense counsel behaves
improperly at trial and nevertheless the defendant is convicted, defense counsel can hardly
urge on appeal that his own misbehavior should constitute grounds for reversal! And on
the other hand, when the defendant is acquitted, that’s the end of the story — there is no
further appeal. That is why many cases have been appealed on the ground of prosecutorial
misconduct, but none on the ground of defense counsel misconduct.
Now, reconsider your answers to Questions 4 and 5. Does justice require that some
additional leeway be given to prosecutors to redress the imbalance caused by the fact that
misbehavior on the part of defense counsel cannot be corrected on appeal? Or would you
say that the danger of convicting an innocent person must be avoided at all costs, even if
it means giving defense counsel strategic advantages at the trial?
7. Respecting the efficacy of curative instructions, suppose two police officers burst
through a suspect’s door without a warrant, punch him, handcuff him, and ransack his
apartment. The suspect sues the police for conducting an illegal search. The officers’ attorney
mentions to the jury that the search revealed evidence of heroin trafficking. The judge
orders the jurors to disregard the statement.
A study by the American Bar Foundation and Northwestern University, reported in
the Wall Street Journal,^® used this and other fictional cases, and found that mock jurors
who didn’t hear about the drugs were nearly twice as likely to award punitive damages to
the victim as those who did.

Commenting to the Wall Street Journal on judges’ instructions to disregard evidence.

Professor Michael Saks of the University of Iowa said, “It’s laughable, because juries don’t
disregard it. They do the rational thing instead of the just thing.” Do you agree with Saks’
distinction between the “just” and the “rational”?

Not all legal systems follow the American legal system in this regard. Some countries routinely allow appeals
by either the prosecution or by the defense.
20 Wall Street Journal, January 25, 1988, p. 31.
 A Fair Jury 45

8. Reference to wealth by a prosecutor — potentially explosive as turning a jury of

average means against a rich litigant — has sometimes led to reversal. In Read v. United
States^' a Special Assistant to the Attorney General of the United States had argued to the
jury in a criminal trial for misapplication of bank funds:”
The entire Read fortune grew up out of and had its origin in the First National Bank of
Shenandoah, Iowa, and if my information is correct, it is a very substantial fortune. I think
the law of the sea should prevail in a case of this kind the same as it does at sea. The law
of the sea requires that the captain of the ship, in case of disaster, shall stay on the bridge
of his ship until every passenger who has entrusted himself to his care shall have reached
safety before the captain himself shall seek safety, otherwise the captain must go down with
his ship. The Read family, and by the ‘Read family’ I mean every member of the Read
family, should have turned over their entire fortune to pay the depositors of this bank every
cent that they had entrusted to the care of the Read’s [5/c] bank. The Read women should
have stripped their jewels from their persons, and not a shingle should have been left over
their heads, unless and until every depositor was paid in full.

The defendants were subsequently convicted. The appellate court reversed:”

The argument of counsel for defendants is not in the record; therefore we are unadvised as
to whether this was said in reply to some argument advanced by said counsel. There was
no evidence that the Read family had a fortune, or that the Read women had any jewels.
Latitude must be allowed for the effect upon a prosecution of the heat engendered during
the trial of a case, but argument must be restrained within reasonable limits. This case was
well and skillfully prosecuted. It is apparent from the affidavits in the record of various
parties that feeling against the Reads was running high. Prejudice against them was intense,
and it was difficult for defendants in this atmosphere to secure a fair trial. Parties who see
their lifelong savings lost in a bank failure are not in a condition of mind to do justice to
those whom they believe may have caused that loss, and deep-seated prejudice against officers
of a failed bank is most natural. It is the duty of a prosecuting attorney to assist in giving
a fair trial to a defendant. The government cannot afford to convict its citizens by unfair
means. The argument referred to was a subtle and powerful appeal to the prejudice of a
jury. Counsel went outside of the evidence to convey to the jury the idea that the Reads
had a fortune; that they kept it while innocent depositors suffered; that they saved themselves,
contrary to the law of the sea, and did not go down with the ship, but continued to possess
their jewelry and fortune. Such an argument was clearly prejudicial. The case was a close
one on the facts, as is evidenced by the various verdicts of the jury on different counts of
the indictments. This appeal was undoubtedly a most persuasive influence with the jury to
convict the defendants on some count, and was such prejudicial error as to make the trial,
in our judgment, an unfair one.

Note the court’s emphasis on the failure of counsel to prepare the closing argument by
introducing evidence to support it at trial. Hence, the closing argument was not only
inherently inflammatory, it was also not “fair comment” on the evidence.
Is “wealth” included in the limited list of improper references (including race, region.

21 42 F.2d 636 (8th Cir. 1930).

22 42 F.2d at 645.

23 Id. But compare Gilman v. City of Laconia, 51 A. 631 (N.H. Sup. Ct., Belknap 1902), where the court
more charitably interpreted a subtler appeal against wealth, albeit in a civil case.
JUSTICE AND THE LEGAL SYSTEM

and religion) because we can expect, as a general rule, that most juries most of the time
will be composed of persons who are not at all wealthy? And what about the question
whether a litigant is covered by insurance? Insurance, after all, makes a litigant quite

wealthy ’ any adverse verdict will be paid not by the litigant but by a “deep pocket”
insurance company. We take up the “insurance” question in Section 2.2.

2.2 Truths we don’t want jurors to hear (mostly about defendants)

In the sections that follow we will consider two examples of rules requiring a trial
judge to exclude evidence about matters jurors might consider very important in deciding
whether to judge a defendant innocent or guilty. You should ask yourself two general
questions about the cases that follow in these sections. First, what is the relevance, if any,
of the excluded evidence? In other words, what vision of justice would admission of the
evidence promote? Second, what is the interest of justice in each case in excluding evidence
assumed to be relevant?

Questions
1. Imagine you are a juror in a negligence case. The plaintiff was injured while driving
to her art gallery in her late-model Mercedes; she was taken to a hospital for minor injuries
and released after two days. She is suing for $55,000 damage to her car, $85,000 pain and
suffering, and $9,000 in hospital bills and related medical costs. The judge has instructed
the jury that if it finds for the plaintiff, then the plaintiff will be entitled as a matter of
law to the $55,000 for car damages and the $9,000 for hospital bills, but the jury will be
able to assess and fix the amount of damages for pain and suffering, from zero to $85,000.
The defendant was driving a six-year-old Ford. The defendant was trying to make a
turn but was distracted by his children who were in the front seat; he didn’t see the plaintiff’s
car and, although he tried to avoid her car, failed at the last minute and hit it. You are
convinced that the plaintiff’s injuries were the result of the defendant’s negligence. But the
defendant is a widower with three small children at home whom he is taking care of while
also working in a factory. He owns the house the family lives in which has a present market
value of $35,000, owns his car worth $1,500, and he has no other significant assets or
savings.
Assuming you are in a jurisdiction where drivers are not required to carry automobile
insurance, would you be interested, before retiring to the jury room, in knowing whether
the defendant was insured?
2. Could you say that knowing whether the defendant was insured might help you
decide whether the defendant was negligent? Is it likely that people who are careless tend
to take out insurance policies, whereas people who are careful do not? Or, the converse?
Would you have any other reason for finding a connection between whether the defendant
is insured and whether he was negligent?
3. Could you say that knowing whether the defendant was insured might help you
 A Fair Jury 47

ascertain how the verdict in this case might affect you personally? If the defendant is not
insured, then it wouldn’t matter to you whether you voted for his total liability for all
damages. But it the defendant is insured, then voting for liability would mean that the
insurance company would pay, and as a result the insurance company would raise everyone’s
premium, including your own.
4. However you answered Question 3, do you think it is ever fair for a decision-maker —
in this case, a juror — to calculate whether the decision in the case will have any personal
impact, however slight? Would calculating such an impact be a sign of prejudice? Or just
common sense and prudence? If a juror is concerned about the rising costs of insurance,
how can the juror put that concern to one side in the jury room?
5. The preceding questions ask us to examine possible prejudices that we may have,
or possible theories ot justice that we may have. Is it important for us to know our own
prejudices and/or our own theories of justice before passing judgment upon the prejudices
and/or theories of justice of others?

Jessup V. Davis
211 N.W. 190
Supreme Court of Nebraska
Nov. 19, 1926

EBERLY, J. This action was brought by The district court failed to follow the rule above
Esther M. JESSUP, as administratrix of the estate announced, and the plaintiff urges this fact as
of her deceased husband, Ursa S. Jessup, to ground for reversal. Plaintiff’s contentions are
recover damages for his death, alleged to have controverted not only by the defendant, but the
been caused by the negligence of defendant in so interests and viewpoint of liability insurance com¬
operating his automobile, while her husband was panies generally in opposition thereto, have been
riding therein as an invited guest, as to cause the most ably presented in oral argument and by three
car to skid and overturn, thereby inflicting fatal written briefs filed by amici curiae.
injuries on Mr. Jessup. This court divides in this On the part of the insurer is necessarily
case solely upon the question of adherence to the involved, from the nature of the business in which
doctrine announced in Miller v. Central Taxi Co., it is engaged, its maintenance of a staff of attor¬
110 Neb. 306, 193 N.W. 919, stated as follows: neys, investigators and experts; on occurrence of
an accident in which its policyholder is involved,
Where a plaintiff in a personal injury action
upon “immediate notice” received, the prompt
seeks by appropriate interrogatories^* on the appearance of its efficient and paid investigators
cross-examination to discover whether the
upon the scene, thorough investigation of the
defendant is indemnified from loss by an
facts, interviews with all parties (if possible) and
insurance company, it is error for the court to
of all persons having knowledge of facts and full
sustain an objection to interrogatories which
reports of the same, together with measures taken
tend to develop the fact on that question.
to preserve and secure favorable evidence, maps
and photos. Thereafter the insurer settles or liti¬
gates, as the conditions of the accident, the sit¬
By “interrogatories” the court means questions
by counsel at the trial. [Eds.] uation and standing of the parties involved, views
JUSTICE AND THE LEGAL SYSTEM

of monetary considerations, may deem wise. between the insurance company and the insured,
If litigation follows, the defense is to be con¬ as well as the principle now contended for, is that
ducted “in the name of the defendant,” it is true, the case may proceed in the name of an ostensible
but by the insurer’s attorneys, along lines wholly party controlled and directed by the insurance
determined by the insurer, and to the extent that company, both as to himself and his witnesses,
the insurer’s interests may determine. The wit¬ as well as the attorneys, and yet the court and the
nesses, whose testimony may be used in behalf of jury shall be wholly oblivious of that fact.
the defendant, are exclusively selected by the If motives, bias and interest of witnesses,
insurer, and are all obtained by efforts of its and the situation of witnesses, with respect to
agents, and are necessarily in many cases employ¬ parties and the subject of litigation, are each a
ees, employed for the purpose of assuring success proper and necessary subject for consideration of
in expected litigation. If the resulting decision be juries, cross-examination must proceed upon the
finally adverse, to the extent of the policy, the basis of the actual facts of the case as to the real
insurer satisfies the judgment and defrays the cost parties in interest who will be substantially
of attorneys and expenses of litigation. Indeed, affected by the outcome. What may be essential
after the occurrence of the accident and notice to to the true development of the actual facts, in
the insurer, the entire matter is within the absolute order that these actual relations may be shown,
control of the insurance company. It litigates or certainly is proper cross-examination. It would
settles as its interests may determine. The assured seem, therefore, that questions eliciting the fact
has, by his agreement, waived all right to object, of the existing insurance and the relations sus¬
influence, or in any manner control the ensuing tained by each witness to the insurance company
proceedings whether of litigation or settlement. must be permitted. If they are not permitted, the
He thereafter acts and participates only to the ordinary right of cross-examination is denied, and
extent and in the manner the insurer may request
a litigant is thus deprived of his “rights of proof”
or direct. to which the ordinary application of the rule enti¬
The acid test of truth in judicial proceedings tles him.
is cross-examination. It is admittedly the most In the form of the proceeding before us the
efficacious agency which the law has devised for real defendant, though unnamed apparently, as a
the discovery of truth. The ordinary rule is, by matter of fact, seeks to avail himself of the benefit
cross-examination, the situation of the witness of the vouchments of the ostensible party defen¬
with respect to the parties in interest, and to the dant. Under the terms of the contract of insur¬
subject of litigation, his interest, his motives, his ance, it cannot be said that the witness apparently
inclination and prejudices, may all be fully inves¬ called and vouched for, as to veracity and standing
tigated and ascertained, and submitted to the con¬ by the apparent defendant, is in fact, his witness,
sideration of the jury before whom he has when he is actually selected and called as the wit¬
testified, and who have had the opportunity of ness of the real party in interest, the insurance
observing and determining the just weight and company, and entitled to no other vouchment.
value of his testimony. Indeed, the entire theory of legal procedure out¬
We have a [statute] providing that all actions lined in these contracts for liability insurance con¬
shall be prosecuted by the real parties in interest. templates a proceeding carried on secretly, by a
The reason for such a [statute] is so that the actual real, though unknown, party in interest, making
status of the case may be apparent to the entire use of concealment and deception. Its essential
court, including the jury. If this is the reason, nature is therefore incompatible with an “open
then why is it not just as important that the real court” and judgments publicly and openly arrived
parties in interest as defendants shall appear? We at. To compel and permit such proceeding is to
have heretofore arrived at the conclusion that the countenance and participate in what is tanta¬
contract of insurance between the insurance com¬ mount to fraud.
pany and the insured, in such a case as this, makes Lastly, it is thought the procedure contem¬
the insurance company the unquestioned party in plated in these liability insurance contracts,
interest, and, not only that, but the unqualified, whereby the defense, though actually made and
controlling party interested in the defense. The controlled by the insurance company, is concealed
sole object of such a contract as that existing by the name of the ostensible defendant, is
 A Fair Jury 49

opposed to a just and enlightened public policy. eration, not as a question of intent on the part
It is certainly patent that for courts to encourage, of the party causing the claimed injury, but as
recognize, enforce and aid, especially by means such fact may bear on the question of his care or
of a benevolent concealment, the carrying out of lack of care or negligence in the particular case?
this portion of the contracts of insurance com¬ It follows that the judgment of the district
panies is to judicially invite, conceal and promote court is reversed and remanded for further pro¬
[evils] into the liability insurance world. In addi¬ ceedings in conformity with this opinion.
tion, the invitation thus extended would carry Reversed.
with it assurance to those tempted to wrong that
there would be no relief for the unfortunates, and GOOD, J. (dissenting). For the reasons here¬
no retribution for the wrongdoer, because the inafter set forth, 1 cannot concur in that part of
wrongdoers would judicially be concealed, and in the majority opinion which holds:
the records of our courts their names would not
Where a plaintiff in a personal injury action
appear or be known. Still, underneath the veil of
seeks by appropriate interrogatories on the
procedure, or behind the mask, maintained by
cross-examination to discover whether the
precedent, will inevitably be developed in truth,
defendant is indemnified from loss by an
with passing time, the same vexatious and oppres¬
insurance company, it is error for the court
sive resisting of payments, justly due, the same
to sustain an objection to interrogatories
persistent endeavor to secure for themselves,
which tend to develop the fact on that ques¬
under and in the name and shadow of the assured, tion.
an escape from just liability that characterized the
fire insurance business of the recent past. It is true that this rule was previously
It would seem that the doctrine of “Open announced in Miller v. Central Taxi Co., 1 10 Neb.
Court” with judgments openly arrived at, and 306, 193 N.W. 919. In that case, however, no rea¬
also “Equality before the law” are principles that son for the rule was given save that it was sup¬
public good cannot permit to be limited, quali¬ posedly based on the holding of this court in
fied, or abandoned, openly or in secret, judicially Egner v. Curtis, Towle & Paine Co., 96 Neb. 18,
or otherwise. 146 N.W. 1032, L.R.A. 1915A, 153. In the latter
And, indeed, on broader grounds, when we case it was ruled that it is proper to inquire of
consider the enhanced efficiency of the automo¬ the jurors, on their voir dire, if they are stock¬
bile, the ever-increasing numbers in active use, holders or otherwise interested in a company, car¬
the increased improvements of our highways, and rying insurance indemnifying defendant against
the increase in the number of protective policies loss from the accident or transaction out of which
of insurance issued to automobile owners, and the action arose. This was on the theory that such
then call to mind the astounding list of casualties information was necessary to enable plaintiff to
on our public roads, we are impelled to seek for prudently exercise his challenges. With that ruling
the cause of this wreckage of property and I am in entire accord. The point decided, however,
destruction of life and limb. It cannot be the auto¬ has no bearing on the question under consider¬
mobile, or the highway, alone. If not there, may ation and is not authority for the rule announced
it not rest in those who operate these machines in Miller v. Central Taxi Co. 1 do not wish to be
of pleasure and usefulness on our public thor¬ understood as contending that it is in no case
oughfares? The ever-increasing casualties are all proper to bring before the jury evidence that
out of proportion to the increasing number of defendant carries indemnity insurance. Cases may
automobiles used. Are we not thus driven to con¬ arise where such disclosure may be proper, for the
clude that, when such insurance is arranged for, purpose of showing the interest or bias of wit¬
the feeling of liability, as well as responsibility, nesses, who may be stockholders, officers, agents
on the part of the individual insured is lessened, or employees of the company carrying the indem¬
and that thereby recklessness or lack of ordinary nity insurance for defendant.
care is bred, rather than ordinary care held in I have made a painstaking examination of
statu quo or greater care promoted? Should not the authorities upon the question and find that,
such question be one for the jury or court trying where the precise question has been presented, a
the case as any other fact submitted for consid¬ view, contrary to that expressed in the majority
JUSTICE AND THE LEGAL SYSTEM

opinion, has been taken in practically every vouches for the veracity of the witnesses called.
juris¬
diction that has passed upon the question, It is a new doctrine to me that the veracity of a
save
that of Nebraska. The courts of 27 of our sister witness should be determined by the person who
states and the federal courts take a contrary calls him. It may sometimes happen that a person
view
to that of the majority opinion. Among the deci¬ of poor reputation or standing for veracity and
sions holding that it is error to permit the plaint probity may call as a witness one of high character
iff,
in an action for personal injuries, to offer evidence and probity. On the other hand, a party of high
or make argument to the jury that the defendant character and standing may, by the exigencies of
in the action is protected by indemnity insurance, the situation, be required to call as a witness one
are the following: [citing many cases]. who is not of that character. In the latter case,
What was the purpose sought to be attained is, then, the witness to be given faith and credit
in offering such evidence to the jury? I think that because a person of high standing calls him as a
all know that the purpose of the offer was not to witness; or is a reputable witness of high character
elucidate any issue involved, but for the effect that and probity to be given little credence because of
it might have on the jury in rendering a verdict the character of the person who calls him as a
for plaintiff. witness? Certainly no such rule obtains. Besides,
It is suggested in the majority opinion that the majority opinion assumes that the insurance
the insurance company is the real party defendant, company, or those who control its policies and
at least to the extent of the insurance carried by actions, are not of high character and standing.
the defendant. This is mere assumption, based Again this is mere assumption, not based upon
upon nothing appearing in the record. It also any fact disclosed by the record.
assumes that defendant will be able to recover his
I respectfully submit that the trial court’s
loss in an action against his insurer. This is mere ruling in sustaining the objection is right. I think
assumption again. the correct rule should be that, unless there are
It is further suggested that the insurance disclosed good reasons for offering such evidence,
company is responsible for the entire conduct of it should be excluded, and if it is brought to the
the defense and calls such witnesses as it pleases, attention of the jury they should be instructed as
and that the party calling the witnesses vouches to the purpose for which it was admitted, and to
for their veracity; that therefore the jury should consider it for that purpose alone.
know that the Insurance company is the one who ROSE and DAY, JJ., concur in this dissent.

Fielding v. Publix Cars

265 N.W. 726
Supreme Court of Nebraska
March 13, 1936

Where the plaintiff shows that defendant car¬ ion in the case of Jessup v. Davis, [130 Neb. 576,
ries liability insurance, when it is not relevant to 211 N.W. 190], as well as the opinions of the court
some issue in the case, we have come to the con¬ of appeals of the District of Columbia, three cir¬
clusion that it is inadmissible. Such evidence can cuit courts of appeal and the courts of last resort
have no relevancy to the question of negligence. in 40 sister states, all holding to the contrary. We
It cannot be disputed that there are cases where will not take the space to quote from each of these
liability insurance may be the subject of evidence, holdings. A discussion of a large number of cases
or the object of interrogatories, if the fact of contrary to Jessup v. Davis, supra, and supporting
insurance bears upon an issue in the case. In other the rule we now believe to be the correct one, will
words, if the evidence is properly admissible for accomplish no good purpose.
any purpose, it cannot be excluded for the reason Against this array of authority, we have
that it tends to prejudice the defendant because failed to find a single case supporting the rule
it shows or tends to show that he carries liability announced by our court in Miller v. Central Taxi
insurance. We have examined with care the opin¬ Co., [110 Neb. 306, 193 N.W. 919], and Jessup v.
 A Fair Jury 51

Davis, supra. The authorities are unanimous in 20 days from the date of the release of this opin¬
supporting a contrary view. In addition to the ion, and that on and after said date, this rule and
great weight of authority being against the rule the holdings of this court based thereon shall cease
to be authoritative.
heretofore existent in Nebraska, we feel that rea¬
son and logic also support the majority view. For the reasons herein stated, the Judgment
It is therefore ordered that the rule of practice of the trial court is reversed, and the cause is
remanded.
promulgated in Jessup v. Davis, supra, and here¬
tofore followed by this court, is revoked, such Reversed.
revocation to be effective in all cases tried after

Notes and Questions

1. The Nebraska Supreme Court’s view in 1926 was strongly expressed: to allow courts
to conceal from the jurors the fact that the defendant is insured “is to countenance and
participate in what is tantamount to fraud.’’ What exactly are the frauds? (There are more
than one.) What are the interests of justice in preventing them? After all, we permit “soft¬
core” frauds in other contexts: sales talk, cult solicitations, promises by candidates for
office.^’ Why forbid it here?
2. Suppose a developer wishes to build a shopping center one interchange away from
an already established shopping center on an interstate. The owners of the established
shopping center secretly supply funds to a citizens group who wish to challenge the proposed
shopping center on environmental grounds. The purpose of the funds is to pay counsel
fees. Should the law allow the donation?
Should public interest law firms be required to disclose their funding sources?
3. Should a major corporation be permitted to assemble small parcels of land through
nominee corporations? If law suits result from such transactions, should the law require
disclosure of the ownership of the nominees?
4. The majority writes about the insurance company operating “underneath the veil of
procedure, or behind the mask.” Presumably justice requires ripping off masks, exposing
exactly who are the “real parties in interest.” At the same time, however, we believe that,
“The law is no respecter of persons.” Are these thoughts consistent?
5. Ten years later, when the Nebraska Supreme Court overruled its decision of 1926,
it made no mention of the phrase “tantamount to fraud.” Was that because in the ten
years between 1926 and 1936, vastly more cars were sold, huge insurance conglomerates

sprung up, and the “insurance lobby” successfully pressured legislatures and courts to keep
the mention of insurance out of negligence cases? Because automobile insurance was becom¬
ing the norm? Because the tort of vehicular negligence was changing?
In thinking about this question, consider who, in the following four cases, would be
hurt, as between all plaintiffs, insurance companies (assuming policy amounts entirely cover
judgments), and uninsured motorists:

25 On these matters, and many more, see A. Leff, Swindling and Selling (1976).
JUSTICE AND THE LEGAL SYSTEM

(1) the court lets in evidence about insurance, and people assume
insurance; motorists have

(2) the court keeps out evidence about insurance, and people assume
have insurance; motorists

(3) the court lets in evidence about insurance, and people do not assume
motorists
have insurance;

(4) the court keeps out evidence about insurance, and people do not assume
motorists have insurance.

Holding steady the assumption that people do not assume motorists have insurance,
which
class would you prefer to see disadvantaged? Holding steady the assumption
that people
do assume motorists have insurance, which class would you prefer to see disadvan
taged?
Do your answers shed light on the transformation in the views of the Nebraska Supreme
Court between 1926 and 1936?
6. If the 1926 Nebraska view had prevailed and become the dominant national approach,
what would be the economic effect on the automobile insurance companies? On the public?
7. So far, which view makes more sense to you— the 1926 or the 1936 view? Consider
the cases that follow.

Brown v. Walter

62 F.2d 798
Circuit Court of Appeals, Second Circuit
Jan. 16, 1933

L. HAND, Circuit Judge. at a house where she was being revived, and where
among other things the defendant had said that
The defendant’s chief complaint is in the per¬ the car belonged to his father and was insured.
sistent effort of the plaintiff to get and keep before
This again, though not shown to be deliberate,
the jury the fact that he was insured; especially
in his summation, which charged that the insurer was extremely prejudicial, and the defendant
had suborned the defendant and his companions objected at once, but the judge would not exclude
it. When later the witness repeated it, the judge
in the car to perjure themselves. This issue
requires us to go into a little detail. The plaintiff again allowed the testimony to stand, contenting
himself with an admonition that the jury should
called the defendant as his witness, and after get¬
ting his story, asked whether he had made a report hold itself impartial in spite of the defendant’s
insurance. The same testimony came out from the
to the state inspector, which was already in evi¬
dence, following this by inquiring whether he had plaintiff while he was on the stand; this time, the
not been interviewed by one Aikey, an insurance defendant unsuccessfully moved for a mistrial.
agent. As there was no attempt to establish any We should therefore hardly have passed the
contradiction between what he said to the agent verdict, had the matter rested there; but the injus¬
and what he said on the stand, the evidence was tice became much more serious, when the plaintiff
clearly incompetent, and could only have been came to sum up. Then he spun a web of suspicion
meant to introduce a forbidden element into the of which there was no warrant whatever. He
argued with much warmth that the whole defense
case. The plaintiff’s wife was then called, and
testified that after the accident the defendant was had been fabricated by the insurer — transparently
 A Fair Jury 53

veiled by such provocative phrases as an “unseen quite true that there are jurisdictions which allow
hand,” and an “unseen force,” and the like. This the inquiry, we cannot agree. There can be no
had not the slightest support in the evidence; it rational excuse, except the flimsy one that a man
was unfair to the last degree. Nobody can read is more likely to be careless if insured. That is at
the summation without being satisfied that the
most the merest guess, much more than out¬
real issues were being suppressed, and the picture weighed by the probability that the real issues will
substituted of an alien and malevolent corpora¬ be obscured. In the case at bar, save for the cross-
tion, lurking in the background and contriving a examination of the doctor, there w'as no excuse
perjurious defense. A judge, at least in a federal for even an intimation that the defendant was
court, is more than a moderator; he is affirma¬ insured; if that witness is not called upon the next
tively charged with securing a fair trial, and he trial, there will be none whatever, and unless the
must intervene sua sponte to that end, when nec¬ insurance is scrupulously kept from the jury, a
essary. It is not always enough that the other side
mistrial should be declared. The prevalent knowl¬
does not protest; often the protest will only serve edge that in such cases insurance is usually taken,
to emphasize the evil. Justice does not depend is a hard enough handicap at best; it is difficult
upon legal dialectics so much as upon the atmos¬ in any event to get a decision on the real issues.
phere of the court room, and that in the end
Judgment reversed; new trial ordered.
depends primarily upon the judge.
It is, indeed, not common to reverse for such
reasons, but here we must intervene. While it is

Smith V. Raup

296 Ill. App. 171

Appellate Court of Illinois, Second District
June 22, 1938

DOVE, Presiding Justice. introduced which informs the jury that one of the
parties has or has not liability insurance. [Citing
Counsel for appellant called appellee as an
cases] These cases hold that it is improper to show
adverse witness and during the course of his exam¬
ination he testified without objection that after that the defendant is insured against loss in case
the accident and before starting for the hospital, of a recovery against the defendant on account
appellant asked him if he carried insurance. Upon of his negligence. What is said in those cases and
his direct examination, when called as a witness many others that might be cited has no application
in his own behalf, appellee testified that before here. Indemnity insurance is very generally carried
starting for the hospital the only remark appellant by automobile owners and drivers. In the instant
made was to inquire of him whether he had insur¬ case, the jury learned of the fact that appellee did
ance, her attorney objected and the court stated not carry such insurance as a result of appellee
that the witness had already testified to the same and his daughter testifying as to the reply which
thing upon cross-examination. The objection was appellee made to an inquiry of appellant. If appel¬
overruled and appellee answered that in reply to lee had not been permitted to state his answer to

appellant’s inquiry as to whether he had insur¬ appellant’s question, the jury could have inferred
that any verdict which they returned, if in favor
ance, he said “No.”
Counsel for appellant, in their argument, of appellant, would have to be paid by an insur¬
state that counsel for appellee began at an early ance company. This court recognizes that the
stage of the trial and persisted in, during the belief is prevalent and widespread that in cases of
course of the trial, a determined effort to inform this character the defendant is really the nominal
the jury that appellee carried no liability insurance party in interest and that the real defendant whose
on his automobile and argue that judgments have pecuniary interest is at stake is an insurance car¬
frequently been reversed when testimony has been rier and no valid reason has been suggested by
JUSTICE AND THE LEGAL SYSTEM

counsel or occurs to us why appellee, in the pleadings were submitted to the jury under proper
instant case, should be precluded from proving, instructions. In our opinion the verdict was war¬
if such was a fact, that he himself would be pecu¬ ranted by the evidence. The trial court approved
niarily affected by any verdict that might be it. No reversible error is found in the record and
returned against him. The trial court committed the judgment will therefore be affirmed.
no error in admitting this evidence.
We have read all the evidence as abstracted Judgment affirmed.

by counsel for appellant. The issues made by the WOLFE and HUFFMAN, JJ., concur.

Questions
1. If Judge Hand could find a way to prevent the jurors from bringing into the courtroom
their prior knowledge that drivers tend to be insured, would he do so? Can you think of
any way to do it? Could the prospective jurors be asked on voir dire if they have any idea
of what insurance” is? What if twelve jurors could be found who have never heard of
insurance ? How representative would such jurors be of the general community?
2. How would Judge Hand criticize Judge Dove? Does Judge Dove make too much
use of the fact that jurors come into the courtroom with prior knowledge about the prevalence
of insurance?

3. Do you agree or disagree with the following general rule: “Justice requires that if
the defendant has insurance, it would be reversible error to allow evidence into the courtroom
of that fact. However, justice also requires that if the defendant is uninsured, it would be
reversible error to disallow evidence into the courtroom of that fact.”
4. To what extent would Judge Dove have to accept the general rule spelled out in
Question 3?
5. Think back to the questions that opened this section on insurance. Suppose you are
representing the rich plaintiff with the Mercedes. You are fearful that the jury will be
reluctant to find that the defendant was negligent even if the jury believes the defendant
was negligent — because the judgment would impoverish him while simply adding more money
to the plaintiff’s coffers. Yet you cannot omit the fact of your client’s wealth from the
case — at the very least, the jury will know that she was driving a very expensive Mercedes.
Is there any argument you can make to the judge that might justify your deliberate intro¬
duction into the evidence of the fact that the defendant is insured?
Consider the following array of possible cases:

1) RICH PLAINTIFF v. POOR DEFENDANT

2) RICH PLAINTIFF v. RICH DEFENDANT
3) POOR PLAINTIFF v. POOR DEFENDANT
4) POOR PLAINTIFF v. RICH DEFENDANT

Now consider what prejudice would result from introducing evidence that the defendant
is insured:

1) What effect does evidence of insurance have here?

2) In this case, evidence of insurance unfairly biases the result;
3) In this case as well, evidence of insurance unfairly biases the result;
 A Fair Jury 55

4) Also in this case, evidence of insurance unfairly biases the result.

Is it not true that in 3 out of the 4 possible cases, whatever the underlying equities of
the case might be, the introduction of evidence of insurance would unfairly prejudice the
jury against the defendant?
Now, what about Case 1? Here, as in the other cases, the introduction of insurance
evidence will bias the case against the defendant. But, unlike the other three cases, is it
not possible here to argue that the bias is a necessary corrective to the injustice that otherwise
would obtain? Would any court accept such an argument? Is there any harm trying? If
you represented the defendant, what argument would you make in rebuttal?

King V. Starr
260 P.2d 351
Supreme Court of Washington
Aug. 20, 1953
Rehearing Denied Oct. 19, 1953

On July 6, 1950, Carol King, who subse¬ and we don’t want to do it.
quently married Robert Gaddis, was employed by THE COURT. Their financial condition is
respondents to work on their farm during the hay¬ no part of this case. That has no bearing
ing season. While working on a hay baling here.
machine she was somehow precipitated into the
moving parts of the machinery and suffered very MR. HUTCHESON. We don’t think there
severe injuries. The complaint which instituted is any motion of that kind made at this time.

this action alleged that these injuries were prox- THE COURT. There is no harm done talking

imately caused by the defendants’ negligence. about it, but we don’t want it in the case at
On March 18, 1952, this case came on for all.
trial. Before the jury was impaneled counsel for
Immediately thereafter a jury was selected
both parties appeared before the trial judge in his
chambers for the purpose of disposing of certain and the trial commenced. After appellant’s coun¬
sel made his opening statement, counsel for
preliminary matters.
respondents then made his opening statement.
The following then occurred: Near the end of that statement he said:
MR. GAVIN. One other item. There is evi¬
The testimony will show that the defendants
dently going to be an issue, and 1 think it
here — they are suing among other things for
is proper to suggest it to Your Honor at this
medical expenses. The testimony will show
time. We will take the position that it will
that the defendants have paid almost all the
be improper for the defense to show anything
plaintiff’s hospital and medical expenses that
of the defendants’ financial condition. were incurred in Goldendale. The defendants
THE COURT. That is not an element. have no insurance here.
MR. GAVIN. Or particularly whether they
are covered by insurance or not. He was then interrupted by appellant’s coun¬
sel who objected to the statement. The court twice
THE COURT. Neither of those have any stated that the remark was objectionable and
place in the thing. instructed the jury to disregard the statement of
MR. GAVIN. If it was made an issue we
counsel. Respondents’ counsel then continued his
would be compelled to move for a mistrial statement and concluded without further reference
JUSTICE AND THE LEGAL SYSTEM

to the matter of insurance. tion. Indeed some courts have even excluded evi¬
As soon as the opening statements were com¬ dence that the defendant is not insured although
pleted counsel again retired to the judge’s cham¬ there is already evidence in the case from which
bers where appellant’s counsel moved for a it may be inferred that he is insured. The reason
mistrial on the ground that respondents’ counsel evidence that the defendant is not covered by
had mentioned to the jury that respondents were insurance is excluded by the courts is that it is
not covered by insurance in this case and that immaterial and does not pertain to any issues in
under the circumstances the remark was improper the cases.
and prejudicial and could not be cured by an We believe that these decisions from other
instruction to disregard it. The judge heard argu¬
jurisdictions adequately dispose of respondents’
ments from both sides and then ruled that, while contentions, as set forth in their brief in this
the remark was improper and “absolutely court, to the effect that it was entirely proper for
uncalled for,” it was not prejudicial since he had their counsel to inject the fact that they had no
promptly admonished the jury to disregard the liability insurance coverage in this case.
statement and in his opinion they would do so. Respondents cite Fine v. Parella, 92 N.H.
He then denied the motion for a mistrial and
81, 25 A. 2d 121, 123. However, in the last para¬
appellant assigns this ruling as error. graph of the Fine case [the New Hampshire] court
The rule is well established in this jurisdic¬ said:
tion that in personal injury cases the fact that the
defendant carries liability insurance is entirely The rule in Piechuck v. Magusiak, remains
immaterial, and the deliberate or wanton injection in force. The case was decided in 1926 and
of this matter into the case by plaintiff is ground the general increase of motor vehicle liability
for reversal. insurance since then as matter of common
Where the fact that the defendant is covered knowledge might serve to make evidence of
by insurance is brought before the jury inadver¬ it less likely to provoke prejudice. But the
tently and it appears that neither the attorney nor converse of evidence of no insurance is so
the witness connected with the case deliberately, interrelated with that of carriage of insur¬
willfully or collusively injected such fact into the ance that the evidence in either situation
case in the presence of the jury, a mistrial will ought not to be unnecessarily received. It
not be granted. remains as immaterial with some chance of
its use for a legally harmful purpose. It does
The gravamen of the offense is not in the
disclosure of a collateral fact, but in the no good and may do harm.

manner of its disclosure; that is, the mis¬ The deliberate reference to the fact that
conduct of counsel. Jensen v. Schlenz [89 respondents carried no insurance, made in the
Wash. 268, 154 P. 160].
presence of the jury and in violation of the court’s
previous ruling that such information had no part
The question whether a defendant can delib¬
erately inject into a personal injury case the fact in the case, was improper and the prejudicial
that he has no insurance, has never before been effect was not eradicated by the prompt action of
directly presented to this court. the trial judge who instructed the jury to disregard
In other jurisdictions the rule is that where, it. For this reason the trial judge was in error in
as here, nothing has been done or said from which refusing to grant the motion for mistrial and in
the jury might infer that defendant is protected subsequently denying the motion for a new trial.
by liability insurance it is improper for defendant Reversed and remanded with directions to
to show that he does not have insurance protec¬ grant appellant a new trial.
 A Fair Jury 57

Hoover v. Gregory

253 N.C. 452, 117 S.E.2d 395

Supreme Court of North Carolina
Nov. 30, 1960

HIGGINS, Justice. been suffered by the parties, and whether

The plaintiffs’ only assignments of error they have insurance or don’t have insurance
has nothing in the world to do with the case.
challenge the following portion of the court’s
charge:
In this case the learned and painstaking
There is one other matter that I must call to judge, after delivering clear and correct instruc¬
your attention, and of which the court takes tions, added at the end the portion to which the
judicial notice. And of which, as I say, is a assignments of error are addressed. His purpose
matter of common knowledge to all people, in doing so is not apparent. If the jury accepted
that in North Carolina in 1958 every person
the court’s admonition to disregard liability insur¬
who owned and operated a motor vehicle in ance, neither party was prejudiced. If it did not
North Carolina was required to do one of accept the admonition, the existence of insurance
two things, that is provide some sort of lia¬ might have prejudiced the defendant. The verdict
bility insurance or post some sort of a bond.
cured any such harmful effect. However, the plain¬
You are not concerned with that fact even
tiffs contend the jury might have been influenced
though you may know about it. You would
violate your oaths and would not be fit to by the court’s remark about insurance rates being
determined by losses and liabilities. Both before
serve on a jury if you would let that fact
and after the remark, the judge cautioned the jury
have any bearing upon your verdict in this
not to let such matters enter into the verdict. The
case, that is, you should not speculate about
whether the parties are insured or not effect of one accident on any juror’s future insur¬
ance premium would be too insignificant, it seems
insured. You know if a plaintiff in a suit,
and this has nothing to do with this case, if to us, to overcome the judge’s positive instructions
a person is prudent enough to take out some as to the rule of damages and that insurance had
nothing to do with the case.
insurance and gets hurt in some sort of acci¬
dent whether it is an automobile or some This opinion goes no further than to hold
other accident and his insurance company that on the facts here disclosed the plaintiffs have
pays him, that does not prevent him from failed to show prejudicial error.
suing another for negligence and recovering. No error.
So, this matter of having liability insurance
in North Carolina must be faced by all of PARKER, Justice (dissenting).
our people, jurors, litigants, judges and law¬
yers and everybody else, and we must be The trial judge’s totally irrelevant statement
about automobile liability insurance in his charge
mindful that this fact has no place in the
to the jury is set forth in the majority opinion.
jury box. Premiums are determined upon the
Centuries ago the son of David, king in
losses and liabilities suffered by insurance
companies which we all must bear, but nev¬ Jerusalem, wrote “there is no new thing under
the sun.’’ Ecclesiastes, Chapter 1, Verse 9. So far
ertheless, that should not enter into a jury’s
verdict. It would be just as bad to let that as a diligent search by myself and my law clerk
discloses the quoted part of the charge is a new
enter into one’s verdict as it would to say on
the other hand that a person has insurance. thing under the sun. I am fortified in my opinion
You first got to determine in cases like this by the fact that the majority opinion and the briefs
whether or not there is liability, and then if of counsel cite nothing like it from the thousands
there is liability, what is the damage that of volumes of reported cases from the Courts of
naturally and proximately flow and have the lands where the English tongue is spoken.
JUSTICE AND THE LEGAL SYSTEM

The trial judge charged the jury that they, a different conclusion. I think the probable effect
the defendant, and all other persons in North was highly prejudicial to plaintiffs, because the
Carolina, who own and operate automobiles, were jury would probably believe that to award plain¬
required to have automobile liability insurance or tiffs substantial damages or any damages at all
post a bond, and then specifically charged, “pre¬ might tend to increase the size of the premiums
miums are determined upon the losses and lia¬ they would be required to pay under our State
bilities suffered by insurance companies, which statute for automobile liability insurance to oper¬
we all must bear.” ate their automobiles, and, therefore, might prob¬
The majority opinion states this was not ably cause them to award plaintiffs nothing as
prejudicial, because the judge charged before and damages, which they in fact did. The reluctance
after this specific statement about premiums not of people to pay insurance premiums increased in
to let insurance enter into their verdict, and size is known to all.
because “the effect of one accident on any juror’s Justice Walker said for the Court in Withers
future insurance premium would be too insignif¬ V. Lane. 144 N.C. 184, 56 S.E. 855:

icant, it seems to us, to overcome the judge’s

positive instructions as to the rule of damages, The judge should be the embodiment of even
and that insurance had nothing to do with the and exact justice. He should at all times be
on the alert, lest, in an unguarded moment,
case.” To this reasoning, I do not agree.
What the trial judge charged the jury about something be incautiously said or done to
the determination of the size of the insurance pre¬ shake the wavering balance which, as a min¬
miums was prejudicial to plaintiffs, in my opin¬ ister of justice, he is supposed, figuratively
ion, and nothing he said before and after that speaking, to hold in his hands. Every suitor
specific statement about premiums could undo the is entitled by the law to have his cause con¬
damage done them. sidered with the ‘cold neutrality of the
What was the probable effect of the judge’s impartial judge’ and the equally unbiased
charge in respect to the determination of the size mind of a properly instructed jury. This right
of premiums for automobile liability insurance on can neither be denied nor abridged.
the minds of the jury? The majority opinion states I vote for a new trial.
the effect of the one case here would be too insig¬
nificant to affect their verdict. My mind reaches MOORE, J., joins in dissent.

Questions
1. What seemed to animate the King court more — the general principle about avoiding
reference to insurance, or the misbehavior of the defendant-appellee Starr’s counsel?
2. If misbehavior of Starr’s counsel was the reason for the reversal, was it fair to Starr
to force him to undergo attorneys’ fees a second time when the fault was his counsel’s?
3. Consider Question 2 carefully. On the assumption that Starr’s lawyer misbehaved,
why did the lawyer misbehave? What was the effect of the misbehavior? Who profited from
it? How fully, how comprehensively, does a lawyer represent the interests of a client?
4. In Hoover, do you agree with Judge Higgins or Judge Parker? Does their reasoning
change your earlier answer to Questions 4 and 5 at the outset of this section?
5. Was Judge Higgins reluctant to have the state incur the expense of retrying the case?
If this is a “justice” factor and we plug it in to the equation, is the result

Higgins -f expense factor = Parker?

In other words, are Higgins and Parker really quite close together? Are they both seeking

the just result? If you feel they are far apart even without the “expense factor,” is only
 A Fair Jury 59

one of them trying to do justice? If they are far apart and both are trying to do Justice,
can only one of them — or can both — succeed?
6. In the cases you have read so far, do the judges appear to be more concerned about
fairness to the litigants (either the plaintiff or defendant) or fairness to insurance companies?

Federal Rules of Evidence

Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible upon
the issue whether the person acted negligently or otherwise wrongfully. This rule does not
require the exclusion of evidence of insurance against liability when offered for another
purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Question
How effective do you think Rule 411 will be in preventing the fact of insurance from
being mentioned in trials held in federal court and thus prejudicing the jury?

2.3 Truths we don’t want jurors to hear (about accusers)

United States v. Kasto

584 F.2d 268

United States Court of Appeals, Eighth Cireuit
Decided Sept. 18, 1978
Rehearing Denied Oct. 13, 1978

Terry L. Pechota, Mission, S.D., for appel¬ whether the District Court erred in prohibiting
lant. the introduction of evidence as to the reputation
of the prosecutrix for unchastity, as to her specific
Gary G. Colbath, Asst. U.S. Atty., Sioux
prior acts of sexual intercourse with men other
Falls, S.D., for appellee.
than the defendant, and as to the fact that she
Before HEANEY, BRIGHT and STEPHEN¬ was wearing an intrauterine contraceptive device
SON, Circuit Judges. at the time of the incident. We hold that the exclu¬
HEANEY, Circuit Judge. sion of this evidence was not an abuse of discre¬
tion.
Abraham Kasto appeals from his conviction Beth Renee Jennings, the prosecutrix, was
of rape in violation of 18 U.S.C. §§ 1153 and an Iowa State University student who was living
2031. The primary issue raised on appeal is on the Cheyenne River Indian Reservation in
JUSTICE AND THE LEGAL SYSTEM

South Dakota. She came to South Dakota on course with him more likely.
March 20, 1977, as a participant in a cultural In Packineau v. United States, supra, the
exchange program sponsored by the University Court held that the trial court’s ruling which pro¬
and the Cheyenne River Indian Reservation hibited cross-examination of the prosecutrix as to
YMCA. At about 11:00 RM. on March 27, 1977, her cohabitation with a young man a few months
Jennings was awakened at her residence by Kasto, before the alleged rape was prejudicial error
who had been previously introduced to her as a requiring a new trial. Id. at 685. The Court rea¬
representative of the YMCA. She turned on the soned that such evidence was necessary to rea¬
lights, let Kasto in and engaged in casual con¬ sonably test the credibility of the prosecutrix. In
versation with him for about forty-five minutes. the view of the majority.
Kasto then asked her to take a ride with him in
That her story of having been raped
his truck. During the ride, Kasto drank whiskey
would be more readily believed by a person
while they discussed the YMCA program on the
who was ignorant of any former unchaste
reservation. After a few minutes, Kasto stopped
conduct on her part than it would be by a
the truck. Jennings asked to be taken home, but
person cognizant of the unchaste conduct
Kasto refused. A scuffle ensued, during which
defendants offered to prove against her
Jennings was pulled from the truck and raped by
Kasto on the ground. He then drove her to his seems too clear for argument. * * * To an
ordinary person called on to make an
house, where he raped her twice. She escaped
from the house and went to the home of neighbors appraisal of [the prosecutrix’s] accusation
that one of the young men with whom she
who took her to a local hospital. She was treated
was out for dalliance on this night had raped
for skin abrasions and a laboratory examination
her, the reaction would certainly be very dif¬
revealed the presence of sperm in her vagina.
ferent if it were known that she had been
Jennings was the only witness to testify as to the
openly cohabiting with a young man only a
events surrounding the rapes.
few months before than it would be if she
Prior to trial, the government moved for a
were the unsophisticated young lady she
court order prohibiting the defense from making
any reference at trial to any sexual activities which appeared to be.
Jennings may have had with men other than Id. at 685-686.
Kasto, and from making any reference to the fact Judge Sanborn dissented. In his view, the
that she was wearing an intrauterine contraceptive trial court did not err in limiting such cross-exam¬
device at the time of the alleged rape. The District ination of the prosecutrix because the evidence
Court granted the motion on the basis that a rape which the defense sought to introduce was
victim’s reputation for unchastity and evidence of “incompetent, irrelevant and immaterial and had
her specific acts of sexual intercourse with men
no bearing whatever upon any issue in the case.”
other than the defendant are irrelevant to either Id. at 688-689. He reasoned that any woman, even
her general credibility as a witness or to the issue one who may have engaged in consensual, extra¬
of her consent to intercourse with the defendant
marital sexual activities with other men, “has
on the date charged. some freedom of selection, and consent obtained
Kasto challenges this ruling on two grounds. from such a woman by a stunning blow on the
First, he argues that, under Packineau v. United
jaw is no consent at all.” Id. at 689.
States, 202 F.2d 681 (8th Cir. 1953), evidence of We believe that Judge Sanborn’s dissent has
Jennings’ reputation for unchastity or prior acts withstood the test of time and is supported both
of sexual intercourse with men other than the in logic and in human experience. The fact that
defendant, and evidence of her use of an intra¬ a rape victim has engaged in consensual sexual
uterine contraceptive device, were relevant to the relations with the defendant in the past under
issue of her consent to have intercourse with him. similar conditions may have some logical relevance
He argues that, under Fed.R.Evid. 401, the fact to the question of consent to the act charged, and
that Jennings may have consented to sexual inter¬ evidence of prior sexual activity with the defen¬
course with others, and wore a contraceptive dant under dissimilar circumstances may also have
device ostensibly for that purpose, would make some logical relevance, but “[wjhen both identity
the consequential fact of her consent to inter¬ of persons and similarity of circumstances are
 A Fair Jury 61

removed, * * * probative value all but disappears.” consent to intercourse with the defendant on the
Ordover, Admissibility of Patterns of Similar Sex¬ particular occasion charged to outweigh its highly
ual Conduct: The Unlamented Death of Character prejudicial effect. [Citing cases] To the extent that
for Chastity, 63 Cornell L.Rev. 90, 106 (1977). the majority opinion in Packineau v. United
Although Judge Sanborn’s dissenting views were States, supra, is inconsistent with this conclusion,
limited to the elicitation of such evidence during
that case is hereby overruled.^®
the cross-examination of the prosecutrix, we feel The weighing of the probative value of such
that the same logic applies to direct examination evidence against its prejudicial effect is, of course,
testimony sought to be introduced by the defense. entrusted to the broad discretion of the trial judge.
We, therefore, conclude that absent circumstances See Fed.R.Evid. 401, 403. Our examination of the
which enhance its probative value, evidence of record in the instant case satisfies us that the rul¬
a rape victim’s unchastity, whether in the form of ing by the District Court prohibiting any reference
testimony concerning her general reputation or to any sexual activity which Jennings may have
direct or cross-examination testimony concerning had w'ith men other than Kasto, and to the fact
specific acts with persons other than the defen¬ that she was wearing an intrauterine contraceptive
dant, is ordinarily insufficiently probative either device at the time of the incident, was not an

of her general credibility as a witness^^ or of her abuse of discretion. Any relevance which this evi¬
dence may have had to the issue of her consent
to sexual relations with Kasto was outweighed by
its prejudicial effect. Since we agree with the Dis¬
2* Such circumstances might include where the evi¬ trict Court that the evidence sought to be intro¬
dence is explanative of a physical fact which is in evidence duced by Kasto fails the threshold test of
at trial, such as the presence of semen, pregnancy, or relevancy, we need not reach his contentions that
the victim’s physical condition indicating intercourse, see the admission of this evidence would have been
State v. Cosden, 18 Wash. App. 213, 219, 568 P.2d 802, permitted by Fed.R.Evid. 404 and 608.
806 (1977); Slate v. McDaniel, 204 N.W.2d 627, 629
Kasto also argues that his inability to cross-
(Iowa 1973), or where the evidence tends to establish
examine Jennings as to her prior sexual activities
bias, prejudice, or an ulterior motive surrounding the
and her use of an intrauterine contraceptive device
charge of rape. See Shoemaker v. State, 58 Tex. Cr. R.
518, 126 S.W. 887, 889 (1910). Sexual history might also denied him his Sixth Amendment right to con¬
be relevant where the victim has engaged in a prior front the witness against him. This claim is with¬
pattern of behavior clearly similar to the conduct imme¬ out merit. The Sixth Amendment right to
diately in issue. See Ordover, supra at 93-94, 110-119. confrontation and the Fifth Amendment right to
27 Some cases have held that evidence of a rape due process of law require only that the accused
victim’s unchastity is admissible for the sole purpose of be permitted to introduce all relevant and admis¬
impeaching the rape victim’s credibility as a witness, on sible evidence. See United States v. Nixon, 418
the theory that a woman of bad moral character is less U.S. 683, 711 (1974). Since we have upheld the
likely to speak the truth than is a woman of good moral
District Court’s determination that the proffered
character. This thinking is reflected in State v. Coella,
3 Wash. 99, 28 P. 28, 29 (1891): evidence was irrelevant to the issue of Jennings’
consent to sexual relations with Kasto, its exclu¬
She [the prosecutrix] could not have ruthlessly sion deprived him of no constitutional right.
destroyed that quality [chastity] upon which
Kasto next contends that he was impermis¬
most other good qualities are dependent, and
for which, above all others, a woman is rev¬ sibly denied the opportunity to cross-examine Jen¬
erenced and respected, and yet retain her credit nings as to any sexual activities which she may
for truthfulness unsmirched * ♦
have had immediately prior to the alleged rape,
which may have been relevant to the source of the
[Citing cases] Other courts have repudiated such views.
It is obvious that the mere fact of unchastity of a victim
has no relevance whatsoever to her credibility as a wit¬
ness. Such a proposition would “necessarily imply the
absurd [corollary] that the extramarital sexual history 28 This opinion was circulated to all judges in reg¬
of a female witness would be admissible to impeach her ular active service and a majority of the Court has
credibility in any case in which she testified.” [Citing expressly approved this panel decision overruling Pack¬
cases] ineau v. United States, 202 F.2d 681 (8th Cir. 1953).
JUSTICE AND THE LEGAL SYSTEM

semen found in her subsequent medical evalua¬ that she was wearing at the time of rape. We find
tion. Although the sexual activities of a prose¬ no merit to this contention. The defense was per¬
cutrix immediately prior to an alleged rape may mitted to question Jennings in camera as to the
be a relevant area for cross-examination by the type of device she was wearing, and there was no
defense, our reading of the record convinces us evidence from her testimony that it was other than
that the failure of defense counsel to pursue this an intrauterine contraceptive device. Although the
line of inquiry was not the result of any express defense had access to the physician’s report prior
prohibition on such questioning by the District to trial, no request was made to question the phy¬
Court. Prior to trial, the government stated that sician about this issue until after the government
it intended to ask Jennings at trial whether she had rested and the witness had been dismissed.
had intercourse with anyone within forty-eight Under these circumstances, any right which the
hours of the alleged incident, and requested a defense might have had to make an offer of proof
ruling from the court as to whether such a ques¬ on the basis of the physician’s testimony was
tion would open the door to inquiry by the defense waived.
as to any sexual activities which Jennings may Kasto also contends that he has been
have had at other times with other men. When, deprived of equal protection of law since, as an
however, defense counsel stated that he had no Indian charged with the rape of a non-Indian
evidence that Jennings had intercourse with any¬ under 18 U.S.C. §§ 1153 and 2031, he was subject
one within forty-eight hours of the alleged rape, to a maximum penalty of life imprisonment upon
the government agreed not to ask the question at conviction, while a non-Indian charged with the
trial, and no ruling on the implications of its same offense under South Dakota law would be
asking was made by the District Court. Later, subject to a maximum of only twenty years’
when Jennings was examined in camera, she imprisonment. In United States v. Antelope, 430
U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977),
stated in response to the government’s question,
that she had had no sexual relations with anyone the Supreme Court held that it is of no consti¬
from the time of her arrival in South Dakota until tutional significance that a federal scheme for the
the incident with Kasto on the night of March 27. punishment of a particular offense differs from a
state criminal code otherwise applicable within the
The defense did not cross-examine Jennings as to
the truth of this statement. boundaries of the state where the reservation lies.
Kasto also argues that he should have been Id. at 648-650, 97 S.Ct. 1395. We are bound by
that decision.
permitted to question Jennings and the examining
physician as to the type of contraceptive device The judgment is affirmed.

Notes and Questions

1. Can you find language in the court’s opinion that evidence of prior sexual activity
the prosecutrix may have had with other men is flat-out irrelevant to the issue of consent
in a rape case? Can you also find language that although such evidence is not irrelevant,
introducing it would be too prejudicial to the prosecutrix? What is the court’s holding on
this issue? If the court switches ground, try to locate the exact moment and say why.
2. Kasto was convicted of a crime to which life imprisonment attaches. Should all
unconsensual intercourse, no matter what the context, be punished by life imprisonment?
Was the real problem that Kasto’s defense attorney faced the fact that there were no statutory
degrees of rape? Should there be? Would you expect higher conviction rates if there were?
What would be the reason justifying degrees of rape? Degrees of moral culpability of
the offense? Trustworthiness of testimony about consent in different contexts? Is the latter
a proper consideration in defining what is and what is not criminal behavior?
What is the justification for not having degrees of rape?
 A Fair Jury 63

3. As you can see from the case, Kasto violated a federal statute against rape. The
federal statute applied to him because he was an Indian on an Indian reservation, hence
state law did not apply to him. Do you agree with the court that Kasto has not been denied
equal protection of the laws even though were a non-Indian to commit rape on the same
reservation the laws of South Dakota would apply and the maximum penalty would only
be 20 years?
4. Consider further the importance of the reservation. Suppose Kasto was acting toward
Jennings in a manner he had been brought up to think was natural or inevitable. Imagine
a culture in which it would have been reasonable for Kasto to believe Jennings had consented.
If Indian culture was in fact such a culture, is it fair for the United States to superimpose
on the reservation its own laws as to rape and its own courts to adjudicate such cases? Is
that cultural imperialism? Even if not, does it do justice to the question of consent?
5. What about the issue whether Jennings’ decision to live for a while on the reser¬
vation — as part of a “cultural exchange program” sponsored by Iowa State University —
obliges her to familiarize herself with possible differences in perception regarding matters
such as sexual intercourse on the part of Indians living on the reservation? Can Kasto make
out a credible case of “provocation”?

Federal Rules of Evidence

Rule 412.” Rape Cases; Relevance of Victim’s Past Behavior

(a) Notwithstanding any other provision of law, in a criminal case in which a person
is accused of rape or of assault with intent to commit rape, reputation or opinion evidence
of the past sexual behavior of an alleged victim of such rape or assault is not admissible.
(b) Notwithstanding any other provision of law, in a criminal case in which a person
is accused of rape or of assault with intent to commit rape, evidence of a victim’s past
sexual behavior other than reputation or opinion evidence is also not admissible, unless
such evidence other than reputation or opinion evidence is —
(1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is constitutionally
required to be admitted; or
(2) admitted in accordance with subdivision (c) and is evidence of —
(A) past sexual behavior with persons other than the accused, offered by the
accused upon the issue of whether the accused was or was not, with respect to
the alleged victim, the source of semen or injury; or
(B) past sexual behavior with the accused and is offered by the accused upon
the issue of whether the alleged victim consented to the sexual behavior with respect
to which rape or assault is alleged.

2’ The Federal Rules of Evidence were first adopted by Congress in 1975. Rule 412 was adopted later, in
Pub. L. No. 95-540 § 2(a)(October 28, 1978), two weeks after the rehearing was denied in Kasto.
 JUSTICE AND THE LEGAL SYSTEM

intends to offer under subdivision (b) evidence of specific instances of the alleged vict
im’s
past sexual behavior, the accused shall make a written motion to offer such evidence not
later than fifteen days before the date on which the trial in which such evidence is to be
offered is scheduled to begin, except that the court may allow the motion to be made at a
(c) later
(1date ), Ifincl
theudin duriaccu
g on trial,of ifcomm
ng sed the itti
courng
t dete
pers rapermin
or esassaeith er that the evid
ult with intent to ence is newly
discovered and could not have been obtained earlier through the exercise of comm it rape
due diligence
or that the issue to which such evidence relates has newly arisen in the case. Any motion
made under this paragraph shall be served on all other parties and on the alleged victim.
(2) The motion described in paragraph (1) shall be accompanied by a written offer of
proof. If the court determines that the offer of proof contains evidence described in sub¬
division (b), the court shall order a hearing in chambers to determine if such evidence is
admissible. At such hearing the parties may call witnesses, including the alleged victim,
and offer relevant evidence. Notwithstanding subdivision (b) of rule 104, if the relevancy
of the evidence which the accused seeks to offer in the trial depends upon the fulfillment
of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in
chambers scheduled for such purpose, shall accept evidence on the issue of whether such
condition of fact is fulfilled and shall determine such issue.
(3) If the court determines on the basis of the hearing described in paragraph (2) that
the evidence which the accused seeks to offer is relevant and that the probative value of
such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible
in the trial to the extent an order made by the court specifies evidence which may be offered
and areas with respect to which the alleged victim may be examined or cross-examined.
(d) For purposes of this rule, the term “past sexual behavior” means sexual behavior
other than the sexual behavior with respect to which rape or assault with intent to commit
rape is alleged.

Questions
1. Does Rule 412 take any positions that do not square with a possible application of
the other evidence rules, specifically Rules 401, 403, and 404(a) (evidence of a person’s
character is not admissible to show that he acted in conformity with it)? If not, what purpose
can we ascribe to Congress in enacting Rule 412 along with the others? In other words,
what, if anything, does Rule 412 accomplish?
2. The public tends to react to publicity about major crimes by demanding an increase
in the severity of penalties. Rape is a major crime, but is an increase in the severity of

punishment a productive way of reducing the incidence of sexual crimes? Even if it isn’t
productive, should penalties be increased anyway in order to make a statement about society’s
condemnation of sexual crimes?
If your answer to the first of these questions is No, and your answer to the second is
Yes, what will happen to societal perceptions in the long run?
 A Fair Jury 65

In Saudi Arabia, the penalty for the crime of adultery is death by stoning if the adulterer
is a woman, and death by beheading if the adulterer is a man. Sandra Mackey reports that
in the past twenty years in Saudi Arabia, only one woman is known to have been stoned
to death for adultery.^” Consider the degree of evidentiary proof needed to convict a person
of adultery in Saudi Arabia. There must be eyewitness evidence of the adultery by either
four male witnesses or eight female witnesses.^’ It is not enough that the witnesses see the
accused couple naked and in an embrace; the witnesses must witness the actual penetration.
Is it fair to say that in Saudi Arabia there is a direct relation among (a) the severity
of the sentence, (b) the degree of evidence required, and (c) the frequency of convictions?

30 S. Mackey, The Saudis: Inside the Desert Kingdom 289 (1990).

31 In the sharia law of Saudi Arabia, throughout all cases, it takes the testimony of two women to equal the
testimony of one man.

Comment on the Federal Rules of Evidence

and the Liberal Theory of Justice

The common theme of Rule 412 and related rules (Rules 404 to 412) is that persons
should be judged only by the actions they do and only inasmuch as those very actions are
the ones for which the court is seeking to determine whether they are legally — civilly or
criminally — liable. Some of the rules in the series are calculated to protect the actions
persons take in the course of litigation (Rule 408 on compromise and offers to compromise;
Rule 410 on pleas). Others deal with collateral issues (Rule 407 on subsequent remedial
measures; Rule 409 on payment of medical expenses occasioned by an injury; Rule 411 on
liability insurance). The main rules in the series, however, focus on character (Rule 404;
Rule 405 on methods of proving character when it is admissible; and Rule 412 on the special
version of character relevant to rape cases).

But isn’t the main difficulty with evidence about a person’s character, apart from
prejudice, the fact that no one understands “character” enough to be able to specify when
character evidence is relevant to establishing character? Indeed, the only sure way we know
to talk about character is to ask about reputation or to deliver conclusory statements in
the form of opinion.
The Federal Rules indicate that the law is suspicious about character evidence. But this
attitude is by no means inevitable. After all, ordinary people make decisions on the basis
of character all the time. The bias against character evidence thus cannot be traced to a
common opinion that evidence about character is fundamentally unreliable, or more unre¬
liable than any other sort of evidence. If we are to find the roots of the bias against character
evidence, we must turn to considerations other than reliability.
We suggest that the bias against character evidence has its origins in the theory of
justice that dominates both common opinion and the legal system. We call it the liberal
JUSTICE AND THE LEGAL SYSTEM

theory of justice. The theory holds that just treatment of persons focuses on what persons
do, not who they are or what circumstance they find themselves in.
The source of the modern liberal theory of justice and social organization is the notion
of freedom. Only when we judge persons by what they do, not who they are or what
circumstance they find themselves in, can we consider persons juridically free. Otherwise,
if we judge them by who they are or by their circumstance, we cannot hold them responsible
for their actions, which we must do if we are to consider them juridically free. The great
modern theorist of liberty, Friedrich Hayek, refers to the main purpose of a legal system
as creating an “order of actions,” that is, a realm in which it is legitimate to hold persons
responsible for their actions and thus consider them juridically free.^^
Character evidence is evil, from this point of view, not because it is unreliable, but
because it threatens any legal order in which it is legitimate to hold persons juridically
responsible for their actions. Perhaps the legal fear is summarized in the French saying,
“to know all is to forgive all.” If the jury knows too much (that is, legally too much) about
a defendant, the jury might sympathize with the defendant rather than finding him guilty.
The only fact we know for sure about character is that one cannot freely choose one’s
own character. If one could act voluntarily to get a character, then the possession of certain
undesirable characteristics would itself be criminal.
The flaw in the liberal theory of justice, which emphasizes freedom as the highest
value, is the difficulty of believing that any person is actually free. Freedom is a value; it
may not be a fact. People do commit crimes, and we do not suppose they always freely
do so. If one is born poor, male and black in the United States, one is more likely, as a
matter of statistical fact, to commit a violent crime than if one is born wealthy, female and
white. We treat people as if they are free, always wondering whether doing so is legitimate.
Legal argument recognizes the hortatory character of the liberal theory of justice. We
make ordinary judgments on the basis of character and circumstance, and we make legal
judgments on the same basis, albeit reluctantly and with a consciousness that we are perhaps
betraying our fundamental values.
At the very least, we constantly find lawyers and factfinders making judgments about
the character of persons from their actions, and judgments about the actions of persons
from their characters. How can we justifiably separate the two?^^
The Federal Rules of Evidence wrestles with the dilemma of modernity, that persons
wish to be free but fear they are not. Character evidence is necessary, but detested. Many
of the paradoxes of the rules governing character evidence — its inconsistencies, loopholes,
and deceptions that we do not here explore^'* — stem from the dilemmas of the liberal theory
of justice.

32 See F. Hayek, Law, Legislation and Liberty, vol. i. Rules and Order, ch. 5; Nomos: The Law of

Liberty, 98-101 (1973).

33 See Chaim Perelman’s essay. Act and Person in Argument, in The Idea of Justice and the Problem of

Argument (1963). For a classic battle of the giants over the questions, see People v. Zackowitz, 254 N.Y. 192,

172 N.E. 466 (1930) (Cardozo against character evidence. Pound for).

34 For a full account of the extraordinary array, see lA Wigmore on Evidence §§ 52 et seq. (P. Tillers rev.
1983).
 A Fair Jury 67

2.4 The composition of juries

The jury introduces average community sentiment into the adjudicatory process. But
problems can arise when a particular jury that is empaneled is not representative of the
community. Not many years ago, juries were selected from voter registration lists from
predominantly white communities; hence blacks were systematically underrepresented on
juries. In large metropolitan areas, many criminal cases involving black defendants were
decided by all-white juries. And years before that, juries were all-male. However, as a matter
of current constitutional law, a strong statistical showing that jury lists do not represent
the community (because they may be biased in favor of whites or males, for example) is
sufficient to require reversal of the jury’s verdict. Even more recently, prosecutorial use of
peremptory challenges (a right to excuse some prospective jurors without stating a reason)
have been invalidated when the prosecutor’s purpose can be demonstrated to have been the
exclusion of jurors because of race. It may not be long before gender-based peremptory
challenges are also held unconstitutional.
Our purpose here is not to reexamine constitutional requirements. Rather, the present
section is designed to raise questions about the justice of certain kinds of juror-exclusion
procedures.

Legal literature is practically silent about the empaneling experience from the juror’s
point of view. In a large city like Chicago, a citizen gets a summons in the mail to appear
for jury call. The notice is well in advance of the call, so that the citizen can make
arrangements to set aside two weeks. On Monday of the first week, he or she shows up at
9 a.m. in the courthouse auditorium. Numbers are assigned by lottery to all of the 500 to
700 prospective jurors. The numbers are called — thirty at a time — and persons with those
numbers are led to a courtroom where they are subject to voir dire questioning. Those who
survive the questioning process remain, the others go back to the auditorium.
In the auditorium, TV sets blare out the day’s soap operas. People read books or sit
silently. There is a room in the back for nonsmokers who want privacy. All day long numbers
are called. Some people are afraid they will get selected for a long trial — because, once
selected, they may have to appear daily in the jury for weeks or months. So some devise
procedures for avoiding selection — thus ensuring that their maximum time spent will be the
two weeks “waiting” to be called. These procedures are fairly sophisticated. Information
is exchanged on how to demonstrate “bias” when questioned by the attorneys. Some pro¬
spective jurors say they are prepared to lie so that they are not selected. The day drags on.
At 4:30 p.m., all the persons in the auditorium who haven’t been selected for a jury are
dismissed and told to come back the next day at 9 a.m. They have to return to the courthouse
auditorium for nine more consecutive weekdays.
Many persons waiting in the courthouse auditorium consider the entire procedure to
be a gross imposition on their time. Many complain of loss of income; although employers
are required to continue paying a salary to employees who are called to jury duty, a number
of persons are self-employed and hence the approximately $16 per day that they are paid
to wait on call constitutes a severe economic loss for them. But some prospective jurors
JUSTICE AND THE LEGAL SYSTEM

are anxious to get selected for an interesting case. They devise strategies
to “hide” any
biases they might have so that they will be selected. If they are rejected
from several jury
panels early in their two-week call, they become progressively better at answerin
g questions
in their succeeding calls so that they will not again be rejected. They learn to
give ambiguous
or evasive answers. The cleverest learn to appear sympathetic when questio
ned by the
attorneys for both sides, so that neither plaintiff nor defendant will reject them.

Exercising Peremptory Challenges After Batson^^

James A. Acker

[Lawyers who want to know which prospective jurors to accept or reject start by
commissioning a demographic analysis.] A description typically is made of the general
characteristics of the population in the community in which the trial is to be held. This
demographic analysis includes information about the age structure of the community, its
racial composition, and aggregate data concerning political and religious affiliations, occu¬
pations, education levels, income, and so forth.
This is followed by more complete telephone or face-to-face interviews with a sample
of the population. The survey collects descriptive information about the respondents, and
also elicits their opinions and attitudes on a variety of topics relevant to the case, crime
and criminal justice generally, and other information that could provide insights about their
likely performances as jurors. The demographic and attitudinal variables are then analyzed
for significant correlations. The analysis may suggest, for example, that younger jurors,
the more highly educated, religious agnostics, people who read The New York Times, or
people who drive pickup trucks might make more or less desirable jurors for the particular
impending trial.

Profiles are then generated of “ideal” jurors for the case. Although such portraits
might be developed with greater specificity and somewhat greater colorable validity than
lawyers arrive at through common sense and intuition, they nevertheless are based on the
same group stereotyping condemned by Batson^*‘ and related cases. The juror profiles,
however, are but a single stream of information relied on in systematic jury selection and
provide a foundation and starting point for the subsequent voir dire of individual prospective
jurors in the courtroom.
If possible, information is compiled about the individual members of the venire who
have been summoned for jury duty. This may be accomplished informally, through local
networking, or more systematically, through access to the questionnaires completed by the
members of the jury panel before reporting to court. The attorneys thus commence their
voir dire armed with general information about the community and the venire, about the
veniremembers, and with a series of questions that both relate to and go beyond the

35 24 Crim. L. Bull. 187, 206-208 (1988).

36 Batson v. Kentucky, 90 L. Ed. 2d 69 (1986) (prosecutor may not exercise peremptory challenges against
black prospective jurors to achieve a nonblack jury).
 A Fair Jury 69

foundation provided by the demographic and attitude survey.

Voir dire questioning then elicits important descriptive information from the individual
prospective jurors, including basic demographic characteristics, hobbies and uses of recre¬
ational time, preferred reading material, membership in groups, clubs and voluntary organ¬
izations, and the like. The attorneys also probe more deeply into attitudes relevant to Jury
service. They may seek to identify “authoritarian” value systems, belief in a “Just world,”
and other such general orientations that may help determine perceptions and attitudes
important to veniremembers’ potential performance as Jurors. Social science indices designed
to evaluate people on such dimensions are typically integrated with a lawyer’s questioning
on voir dire for this purpose.
The nonverbal behavior of prospective Jurors might also be assessed as a part of
systematic Jury selection. The eye and hand movements of veniremembers, their shifts in

posture, speech inflections, and other “body language” might yield information about their
candor and affinity toward the attorneys representing the different parties to a case. Members
of the panel are evaluated not only as individuals, but according to how they would likely
fit with other Jurors during group decision making. Potential leaders and followers might
be identified, likely cliques and coalitions predicted, and attorneys generally might have to
be attentive to the composition of the Jury as a group, rather than simply considering the
individual members of it.
A lawyer faithful to such procedures would only make a decision about exercising
peremptory challenges after these numerous pieces of information about a case, the com¬
munity, and prospective Jurors were combined and evaluated. Unless racial identity or other
group membership were considered such a dominant characteristic as to dwarf the other
ostensibly relevant attributes of a “good” or “bad” Juror, reliance on systematic Jury
selection techniques should effectively discourage lawyers from acting on the sorts of racial
assumptions condemned in Batson and related cases. The larger question, however, is whether
these techniques are apt to contribute affirmatively to a lawyer’s objectives in selecting a
Jury, an issue on which the evidence is mixed.

Notes and Questions

1. Do you consider these systematic Juror selection procedures to be a triumph of good

litigation skills or an impediment to the Just resolution of disputes?
2. Would the legal system be better off if Jurors were asked no questions at all, there
were no dismissals of Jurors for cause, and all peremptory challenges were eliminated?
3. No matter what an individual Juror’s background, education, and general attitudes
may be, is it not possible that he or she has a particular bias relating to the facts of the
case? If the bias is personal — for example, the Juror knows one of the parties — then the
Judge will typically dismiss the Juror “for cause.” But a Juror may also be biased because
of a particular personal experience. For example, a Juror who was once the victim of an
automobile accident is generally considered dismissible “for cause” in a tort case involving
an automobile accident. Doesn’t the exclusion of such Jurors destroy the “representativeness”
of the Jury panel in the community?
JUSTICE AND THE LEGAL SYSTEM

4. Suppose you are a prospective juror in a murder case. You are told that the defendant
has been indicted for first-degree murder and that the state is asking
for the death penalty.
Then the prosecutor asks you on voir dire whether you are opposed to capital
punishment.
How would you respond? Consider the following Letter to the Editor of
The Chicago
Lawyer.^’’
DALEY’S OFFICE BLASTED FOR ASSAILING
DISSENTING JUROR IN DEATH PENALTY CASE

To the Editor of Chicago Lawyer:

As members of the Chicago legal community, we strongly condemn statements issued

publicly by the Cook County state’s attorney’s office expressing the intent to prosecute
, for
perjury, a juror who voted against the death penalty in a recent case.
In December, a jury convicted Miriam Watt of murdering her two-year-old grand¬
daughter. The prosecution requested the death penalty. After five hours of deliberations,
the jury voted 11 to 1 in favor of death. Because a death verdict must be unanimous. Watt’s
life was spared. The state’s office, upset that the 12 jurors did not march lockstep to the
death chamber, now has threatened to prosecute an individual of conscience.
Immediately after the verdict, the prosecutor accused the dissenting juror of “sabo¬
taging the system.’’ Supervising Assistant State’s Attorney Robert Clifford announced to
the press that his office was contemplating prosecuting the juror for perjury on the ground
that the juror, when questioned before the trial, stated that he could consider imposing a
death sentence, yet refused to do so during the jury’s deliberations.
Clifford should be reminded that in a democracy, the voice of dissent is not sabotage,
but a necessary and valuable part of the “system.” Clifford’s statements constitute not only
a blatant threat to punish a juror for depriving the state’s attorney’s office of a death verdict,
but an insidious attempt to intimidate future jurors with the specter of prosecution for
disagreement with the government. Such threats and intimidation have no place in our
criminal justice system.
Jury deliberations are sacrosanct. No juror ever need justify his or her vote in a
criminal case. The dissenting juror in the Watt case, for whatever reason, concluded that
the defendant should not be sentenced to death. Perhaps the juror felt lingering doubt about
Watt’s guilt, since the evidence against her was completely circumstantial. Perhaps the juror
felt the evidence did not warrant the death penalty. Perhaps the juror chose to extend mercy
to Watt. Any of these reasons is completely legitimate and above questioning or criticism.
Moreover, even if the juror in the Watt case simply refused to consider the death
penalty, there was no “perjury” involved. The decision to sentence a fellow human being
to death is unlike any other. A potential juror being questioned before a trial may sincerely
believe that he could, under the proper circumstances, sentence someone to death. Yet that
same juror, after hearing the evidence and considering the sentence in deliberations, may
find himself unable to do so. Such a good faith realization by a juror is no crime.
Our jury system will cease to work if jurors are forced to worry that they may be

37 Chicago Lawyer, February 1989, at p. 10. The letter was signed by; Randolph N. Stone, Public Defender
of Cook County; Robert P. Lsaacson, Chief, Appeals Division, Cook County Public Defender’s Office; Kyle
Wesendorf, Assistant Public Defender; Steven Clark and Charles Hoffman, Assistant Defenders, Supreme Court
Unit, Office of the State Appellate Defender; Standish Willis, Co-Chair, Chicago Conference of Black Lawyers;
Jed Stone, Member, Board of Directors, Illinois Attorneys for Criminal Justice; Douglass W. Cassel Jr., President,
Chicago Chapter, National Lawyers Guild; Peter J. Schmiedel, Peoples Law Office; Benjamin Wolf, Staff Attorney,
ACLU.
 A Fair Jury 71

punished for their decisions. State’s Attorney Daley should immediately and publicly retract
the threat to prosecute the dissenting juror in the Watt case, and insure that similar threats
are not repeated by his assistants in the future.

5. Suppose you are asked the question on voir dire, and you say that you are opposed
to capital punishment. You will be dismissed “for cause.” So will every juror who so
responds. The empaneled jury will be made up only of citizens who are not opposed to
capital punishment. Would such a jury be “representative of the community”?
6. Is a person who is in favor of the death penalty a person who is more likely to find
the defendant guilty? Or does a juror’s verdict on the facts bear no necessary relationship
to the juror’s beliefs about the propriety or impropriety of capital punishment?
7. Do you agree with the writers of the letter that jury deliberations are “sacrosanct”?
If so, why? If not, why not?

United States v. Dougherty

473 F.2d 1 1 13
United States Court of Appeals,
District of Columbia Circuit
June 30, 1972
Rehearing Denied October 26, 1972

Before BAZELON, Chief Judge, LEVEN- that they accordingly have the legal right that the
THAL, Circuit Judge, and ADAMS, Circuit jury be informed of its power. We turn to this
Judge, United States Court of Appeals for the matter in order to define the nature of the new
Third Circuit. trial permitted by our mandate.
There has evolved in the Anglo-American
LEVENTHAL, Circuit Judge:
system an undoubted jury prerogative-in-fact,
Seven of the so-called “D.C. Nine” bring derived from its power to bring in a general verdict
this joint appeal from convictions arising out of of not guilty in a criminal case, that is not revers¬
their unconsented entry into the Washington ible by the court. The power of the courts to
offices of the Dow Chemical Company, and their punish jurors for corrupt or incorrect verdicts,
destruction of certain property therein. On Feb¬ which persisted after the medieval system of
ruary 11, 1970, after a six-day trial, the seven were attaint by another jury became obsolete, was
each convicted of two counts of malicious destruc¬
repudiated in 1670 when Bushell’s Case, 124
tion. The jury acquitted on the burglary charges Eng. Rep. 1006 (C.P. 1670) discharged the jurors
but convicted on the lesser-included offense of who had acquitted William Penn of unlawful
unlawful entry. assembly. Juries in civil cases became subject to
Appellants urge [among other contentions, the control of ordering a new trial; no comparable
that] the judge erroneously refused to instruct the control evolved for acquittals in criminal cases.
jury of its right to acquit appellants without The pages of history shine on instances of
regard to the law and the evidence, and refused the jury’s exercise of its prerogative to disregard
to permit appellants to argue that issue to the uncontradicted evidence and instructions of the
jury. judge. Most often commended are the 18th cen¬
[Appellants] say that the jury has a well- tury acquittal of Peter Zenger of seditious libel,
recognized prerogative to disregard the instruc¬ on the plea of Andrew Hamilton, and the 19th
tions of the court even as to matters of law, and century acquittals in prosecutions under the fugi-
JUSTICE AND THE LEGAL SYSTEM

live slave law. The values involved drop a Reflective opinions upholding the necessity
notch
when the liberty vindicated by the verdict relates for the jury as a protection against arbitrary
to the defendant’s shooting of his wife’s paramour, action, such as prosecutorial abuse of power,
or purchase during Prohibition of alcoholic bev¬ stress fundamental features like the jury “com¬
erages.^® mon sense judgment” and assurance of “com¬
Even the notable Dean Pound commented munity participation in the determination of guilt
in 1910 on positive aspects of “such jury law¬ or innocence.”” Human frailty being what it is,
lessness.”®’ These observations of history and phi¬ a prosecutor disposed by unworthy motives could
losophy are underscored and illuminated, in terms likely establish some basis in fact for bringing
of the current place of the jury in the American charges against anyone he wants to book, but the
system of justice, by the empirical information jury system operates in fact, (see note [40]) so
and critical insights and analyses blended so felic¬ that the jury will not convict when they empathize
itously in H. Kalven and H. Zeisel, The American with the defendant, as when the offense is one
they see themselves as likely to commit, or con¬
Jury.’® sider generally acceptable or condonable under the
mores of the community.
The existence of an unreviewable and unrev-
38 Kalven and Zeisel, op. cit. infra note [40], at p. ersible power in the jury, to acquit in disregard
310 (Fugitive Slave Law), at p. 292, note 10 (Prohibition of the instructions on the law given by the trial
acquittals statistics, showing variation by districts).
judge, has for many years co-existed with legal
3’ See R. Pound, Law in Books and Law in practice and precedent upholding instructions to
Action, 44 Am. L. Rev. 12, 18 (1910): “Jury lawlessness
is the greatest corrective of law in its actual adminis¬
tration. The will of the state at large imposed on a
reluctant community, the will of a majority imposed on boundaries hedging the privilege of self-defense” (p.
a vigorous and determined minority, find the same 241). (E.g., acquittal for retaliation following assaults,
obstacle in the local jury that formerly confronted kings or even harassment and provocation, without present
and ministers.” Pound comments that the law as written, danger; for violence erupting after domestic strife, or
and invoked by prosecutors, “demands conviction of unfaithfulness of spouse; for fraud of a victim still the
persons whom local or even general opinion does not seller’s friend; for statutory rape of a girl unchaste; for
desire to punish,” and adds that “the law is often too sale of liquor to a minor who is a member of the armed
forces).
mechanical at a point requiring nicety of adjustment.”
(Pub. Little, Brown 1966). The study of the Perhaps most relevant is ch. 19 on Unpopular Laws,
American jury system, undertaken at the University of p. 286 et seq. Though the authors discerned no law
Chicago Law School, is a complete analysis of 3576 prompting a jury revolt comparable to the historic
criminal jury trials, with particular focus on the 1063 acquittals on charges of violation of seditious libel or
instances where the judge reported that he disagreed fugitive slave laws, or even Prohibition, the data indicate
with the jury verdict, and why. Half these cases present that the historic role of the jury as a bulwark against

an apparent difference between judge and jury on “sen¬ official tyranny is “amply evident in its contemporary
role as a moderate corrective against undue prosecutions
timents on the law.”
The study supports in depth the conclusion that the for gambling, game and liquor violations and, to some
jury is likely to call on its prerogative of lenity and extent, drunken driving” (p. 296), the jury’s traditional
hostility to sumptuary legislation being “keyed to its
equity, contrary to the judge’s instruction, when the case
is one where it can empathize with the defendant, feeling perception that . . . widespread violation is tolerated” so
either that the jurors might well have been or come to that prosecution of a particular defendant is contrary
to the principle of evenhanded justice (p. 287). And so
be in the same position, or that in the large the defen¬
in some counties “people generally do not like the game
dant’s conduct is not so contrary to general conduct
standards as to be condemned as criminally deviate con¬ law” (p. 288). In counties where jurors play the numbers
they acquit broadly in gambling cases (p. 289) etc. When
duct. From a study teeming with illustrations, the fol¬
lowing are cited as examples. the jurors “feel the same thing could happen to them,”
they will acquit even of negligent manslaughter charges,
The authors broadly discern that “in cases having
a de minimis cast or a note of contributory fault or as in running a red light, though there are more con¬
victions in cases involving extreme speed. (Ch. 24).
provocation ♦ * * the jury will exercise its de facto
See Duncan v. Louisiana, 391 U.S. 145, 156
powers to write these equities into the criminal law” (p.
285) and “an impatience with the nicety of the law’s (1968).
 A Fair Jury 73

the jury that they are required to follow the the nation’s intellectual mainstream, subject to the
instructions of the court on all matters of law.
checks of the common law tradition and profes¬
There were different soundings in colonial days
and the early days of our Republic. We are aware sional opinion, and capable, in Roscoe Pound’s
of the number and variety of expressions at that words, of providing “true judicial justice” stand¬

time from respected sources — John Adams; Alex¬ ing in contrast with the colonial experience.*^
The tide was turned by Battiste, but there
ander Hamilton; prominent judges — that jurors were cross-currents. At mid-century the country
had a duty to find a verdict according to their was still influenced by the precepts of Jacksonian
own conscience, though in opposition to the direc¬ democracy, which spurred demands for direct
tion of the court; that their power signified a
selection of judges by the people through elec¬
right; that they were judges both of law and of tions, and distrust of the judge-made common law
fact in a criminal case, and not bound by the which enhanced the movement for codification
opinion of the court. reform. But by the end of the century, even the
The rulings did not run all one way, but
most prominent state landmarks had been top¬
rather precipitated “a number of classic exchanges pled; and the Supreme Court settled the matter
on the freedom and obligations of the criminal for the Federal courts in Sparf v. United States,
jury”«2 Yhij was, indeed, one of the points of 156 U.S. 51, 102 (1895) after exhaustive review in
clash between the contending forces staking out
both majority and dissenting opinions. The jury’s
the direction of the government of the newly role was respected as significant and wholesome,
established Republic, a direction resolved in polit¬ but it was not to be given instructions that artic¬
ical terms by reforming but sustaining the status ulated a right to do whatever it willed. The old
of the courts, without radical change. '*^As the rule survives today only as a singular relic.
distrust of judges appointed and removable by the
Since the jury’s prerogative of lenity, in
king receded, there came increasing acceptance
Learned Hand’s words, introduces a “slack into
that under a republic the protection of citizens lay the enforcement of law, tempering its rigor by the
not in recognizing the right of each jury to make
mollifying influence of current ethical conven¬
its own law, but in following democratic processes
tions,” it is only just, say appellants, that the
for changing the law.
jurors be so told. It is unjust to withhold infor¬
The crucial legal ruling came in United States
V. Battiste, 2 Sum. 240, Fed.Cas. No. 14,545
mation on the jury power of “nullification,” since
conscientious jurors may come, ironically, to
(C.C.D.Mass. 1835). Justice Story’s strong opin¬ abide by their oath as jurors to render verdicts
ion supported the conception that the jury’s func¬ offensive to their individual conscience, to defer
tion lay in accepting the law given to it by the to an assumption of necessity that is contrary to
court and applying that law to the facts. This reality.
considered ruling of an influential jurist won
This so-called right of jury nullification is
increasing acceptance in the nation. The youthful put forward in the name of liberty and democracy,
passion for independence accommodated itself to
but its explicit avowal risks the ultimate logic of
the reality that the former rebels were now in
anarchy. This is the concern voiced by Judge
control of their own destiny, that the practical Sobeloff in United States v. Moylan, 417 F.2d
needs of stability and sound growth outweighed
1002, 1009 (4th Cir. 1969), cert, denied, 397 U.S.
the abstraction of centrifugal philosophy, and that 910 (1970):
the judges in the courts, were not the colonial
appointees projecting royalist patronage and To encourage individuals to make their own
influence but were themselves part and parcel of determinations as to which laws they will
obey and which they will permit themselves
as a matter of conscience to disobey is to
invite chaos. No legal system could long sur-
^2 M. R. Kadish & S. H. Kadish, On Justified Rule
Departures by Officials, 59 Calif. L. Rev. 905, 914
(1971).
^3 A. Ellis, The Jeffersonian Crisis (Oxford See IV Pound, Jurisprudence (West Pub. Co.
Press, 1971).
1959) pp. 8-9.
JUSTICE AND THE LEGAL SYSTEM

vive if it gave every individual the option of the legal system from more than one voice. There
disregarding with impunity any law which by is the formal communication from the judge.
his personal standard was judged morally There is the informal communication from the
untenable. Toleration of such conduct would total culture — literature (novel, drama, film, and
not be democratic, as appellants claim, but television); conversation; and, of course, history
inevitably anarchic. and tradition. The totality of input generally con¬
vey adequately enough the idea of prerogative, of
The statement that avowal of the jury’s pre¬
freedom in an occasional case to depart from what
rogative runs the risk of anarchy, represents,
in the judge says. Even indicators that would on their
all likelihood, the habit of thought of philosophy
face seem too weak to notice — like the fact that
and logic, rather than the prediction of the social
the judge tells the jury it must acquit (in case of
scientist. But if the statement contains an element
reasonable doubt) but never tells the jury in so
of hyperbole, the existence of risk and danger, of
many words that it must convict — are a mean¬
significant magnitude, cannot be gainsaid. In con¬
ingful part of the jury’s total input. Law is a
trast, the advocates of jury “nullification” appar¬ system, and it is also a language, with secondary
ently assume that the articulation of the jury’s meanings that may be unrecorded yet are part of
power will not extend its use or extent, or will its life.
not do so significantly or obnoxiously. Can this
When the legal system relegates the infor¬
assumption fairly be made? We know that a
posted limit of 60 m.p.h. produces factual speeds mation of the jury’s prerogative to an essentially
informal input, it is not being duplicitous, charge¬
10 or even 15 miles greater, with an understanding able with chicane and intent to deceive. The lim¬
all around that some “tolerance” is acceptable to itation to informal input is, rather a governor to
the authorities, assuming conditions warrant. But
avoid excess: the prerogative is reserved for the
can it be supposed that the speeds would stay
exceptional case, and the judge’s instruction is
substantially the same if the speed limit were put: retained as a generally effective constraint. We
Drive as fast as you think appropriate, without
“recognize a constraint as obligatory upon us
the posted limit as an anchor, a point of depar¬ when we require not merely reason to defend our
ture?
rule departures, but damn good reason.”'’* The
Our jury system is a resultant of many vec¬ practicalities of men, machinery and rules point
tors, some explicit, and some rooted in tradition,
up the danger of articulating discretion to depart
continuity and general understanding without from a rule, that the breach will be more often
express formulation. A constitution may be mean¬ and casually invoked. We cannot gainsay that
ingful though it is unwritten, as the British have
occasionally jurors uninstructed as to the prerog¬
proved for 900 years. ative may feel themselves compelled to the point
The jury system has worked out reason¬ of rigidity. The danger of the excess rigidity that
ably well overall, providing “play in the joints” may now occasionally exist is not as great as the
that imparts flexibility and avoids undue rigidity. danger of removing the boundaries of constraint
An equilibrium has evolved — an often marvelous provided by the announced rules.
balance — with the jury acting as a “safety valve” Rules of law or justice involve choice of val¬
for exceptional cases, without being a wildcat or ues and ordering of objectives for which unanim¬
runaway institution. There is reason to believe that ity is unlikely in any society, or group representing
the simultaneous achievement of modest jury the society, especially as diverse in cultures and
equity and avoidance of intolerable caprice interests as ours. To seek unity out of diversity,
depends on formal instructions that do not under the national motto, there must be a pro¬
expressly delineate a jury charter to carve out its cedure for decision by vote of a majority or pre¬
own rules of law. scribed plurality — in accordance with democratic
The way the jury operates may be radically philosophy. To assign the role of mini-legislature
altered if there is alteration in the way it is told
to operate. The jury knows well enough that its
prerogative is not limited to the choices articulated
in the formal instructions of the court. The jury Kadish & Kadish, supra, note [42], 59 Calif.
gets its understanding as to the arrangements in L. Rkv. at 926.
 A Fair Jury 75

to the various petit juries, who must hang if not pendent jury conception confines the happening
unanimous, exposes criminal law and adminis¬ of the lawless jury to the occasional instance that
tration to paralysis, and to a deadlock that betrays does not violate, and viewed as an exception may
rather than furthers the assumptions of viable even enhance, the over-all normative effect of the
democracy.
rule of law. An explicit instruction to a jury con¬
Moreover, to compel a juror involuntarily veys an implied approval that runs the risk of
assigned to jury duty to assume the burdens of degrading the legal structure requisite for true
mini-legislator or judge, as is implicit in the doc¬ freedom, for an ordered liberty that protects
trine of nullification, is to put untoward strains against anarchy as well as tyranny.
on the jury system. It is one thing for a juror to
know that the law condemns, but he has a factual BAZELON, Chief Judge, dissenting in part:

power of lenity. To tell him expressly of a nulli¬ My disagreement with the Court concerns
fication prerogative, however, is to inform him,
the issue of jury nullification. As the Court’s opin¬
in effect, that it is he who fashions the rule that ion clearly acknowledges, there can be no doubt
condemns. That is an overwhelming responsibil¬ that the jury has “an unreviewable and unrever-
ity, an extreme burden for the jurors’ psyche. And sible power * * * to acquit in disregard of the
it is not inappropriate to add that a juror called instructions on the law given by the trial judge
upon for an involuntary public service is entitled * * More important, the Court apparently
to the protection, when he takes action that he concedes — although in somewhat grudging
knows is right, but also knows is unpopular, either terms — that the power of nullification is a “nec¬
in the community at large or in his own particular essary counter to case-hardened judges and arbi¬
grouping, that he can fairly put it to friends and trary prosecutors,” and that exercise of the power
neighbors that he was merely following the may, in at least some instances, “enhance, the
instructions of the court. over-all normative effect of the rule of law.” We
In the last analysis, our rejection of the could not withhold that concession without scoff¬
request for jury nullification doctrine is a recog¬ ing at the rationale that underlies the right to jury
nition that there are times when logic is not the trial in criminal cases, and belittling some of the
only or even best guide to sound conduct of gov¬ most legendary episodes in our political and juris¬
ernment. For machines, one can indulge the per¬ prudential history.
son who likes to tinker in pursuit of fine tuning. The sticking point, however, is whether or
When men and judicial machinery are involved, not the jury should be told of its power to nullify
one must attend to the many and complex mech¬ the law in a particular case. Here, the trial judge
anisms and reasons that lead men to change their not only denied a requested instruction on nul¬
conduct — when they are told of the consequences lification, but also barred defense counsel from
of their conduct; and when conduct exercised with raising the issue in argument before the jury. The
restraint as an unwritten exception is expressly majority affirms that ruling. I see no justification
presented as a legitimate option. for, and considerable harm in, this deliberate lack
What makes for health as an occasional med¬ of candor.
icine would be disastrous as a daily diet. The fact At trial, the defendants made no effort to

that there is widespread existence of the jury’s deny that they had committed the acts charged.
prerogative, and approval of its existence as a Their defense was designed to persuade the jury
that it would be unconscionable to convict them
“necessary counter to case-hardened judges and
of violating a statute whose general validity and
arbitrary prosecutors,” does not establish as an
imperative that the jury must be informed by the applicability they did not challenge. An instruc¬
judge of that power. On the contrary, it is prag¬ tion on nullification — or at least some argument
matically useful to structure instructions in such to the jury on that issue — was, therefore, the
wise that the jury must feel strongly about the linchpin of the defense.
values involved in the case, so strongly that it must [W]e are left with a doctrine that may
itself identify the case as establishing a call of “enhance the over-all normative effect of the rule
high conscience, and must independently initiate of law,” but, at the same time, one that must not
and undertake an act in contravention of the only be concealed from the jury, but also effec¬
established instructions. This requirement of inde¬ tively condemned in the jury’s presence. Plainly,
JUSTICE AND THE LEGAL SYSTEM

the justification for this sleight-of-hand lies in a Moreover, if it were true that nullification
fear that an occasionally noble doctrine will, if which arises out of ignorance is in some sense
acknowledged, often be put to ignoble and abusive more worthy than nullification which arises out
purposes— or, to borrow the Court’s phrase, will of knowledge, the Court would have to go much
“run the risk of anarchy.” A breakdown of the further. For under the Court’s assumption, the
legal order is not a result I would knowingly harm does not arise because a jury is told of its
encourage or enjoy. But the question cannot be power to disregard the law, but because it knows
resolved, at least at this stage of the argument, of its power. Logically construed, the Court’s
by asking if we are for or against anarchy, or if opinion would seem to require the disqualification
we are willing to tolerate a little less law and order at voir dire of any prospective juror who admitted
so that we can permit a little more jury nullifi¬ to knowledge of the doctrine.^* By excluding
cation. No matter how horrible the effect feared jurors with knowledge of the doctrine the Court
by the Court, the validity of its reasoning depends could insure that its invocation would be spon¬
on the existence of a demonstrable connection taneous. And yet, far from requiring the exclusion
between the alleged cause (a jury nullification of jurors who are aware of the power, the Court
instruction or argument to the jury on that issue) takes comfort in the fact that informal commu¬
and the effect. I am unable to see a connection. nication to the jury “generally convey[s] ade¬
To be sure, there are abusive purposes, dis¬ quately enough the idea of prerogative, of freedom
cussed below, to which the doctrine might be put. in an occasional case to depart from what the
The Court assumes that these abuses are most
judge says.” One cannot, it seems to me, have the
likely to occur if the doctrine is formally described argument both ways. If, as the Court appears to
to the jury by argument or instruction. That concede, awareness is preferable to ignorance,
assumption, it should be clear, does not rest on then I simply do not understand the justification
any proposition of logic. It is nothing more or for relying on a haphazard process of informal
less than a prediction of how jurors will react to communication whose effectiveness is likely to
the judge’s instruction or argument by counsel. depend, to a large extent, on whether or not any
And since we have no empirical data to measure of the jurors are so well-educated and astute that
the validity of the prediction, we must rely on our they are able to receive the message. If the jury
own rough judgments of its plausibility. should know of its power to disregard the law,
The Court reasons that a jury uninformed then the power should be explicitly described by
of its power to nullify will invoke that power only instruction of the court or argument of counsel.
where it “feel[s] strongly about the values involved My own view rests on the premise that nul¬
in the case, so strongly that it [will] itself identify lification can and should serve an important func¬
the case as establishing a call of high conscience tion in the criminal process. I do not see it as a
* * *.” In other words, the spontaneous and unso¬ doctrine that exists only because we lack the power
licited act of nullification is thought less likely, to punish jurors who refuse to enforce the law or
on the whole, to reflect bias and a perverse sense to re-prosecute a defendant whose acquittal can¬
of values than the act of nullification carried out not be justified in the strict terms of law. The
by a jury carefully instructed on its power and doctrine permits the jury to bring to bear on the
responsibility. criminal process a sense of fairness and partic¬
It seems substantially more plausible to me ularized justice. The drafters of legal rules cannot
to assume that the very opposite is true. The juror anticipate and take account of every case where
motivated by prejudice seems to me more likely a defendant’s conduct is “unlawful” but not
to make spontaneous use of the power to nullify, blameworthy, any more than they can draw a bold
and more likely to disregard the judge’s exposition line to mark the boundary between an accident
of the normally controlling legal standards. The and negligence. It is the jury — as spokesman for
conscientious juror, who could make a careful
effort to consider the blameworthiness of the

defendant’s action in light of prevailing commu¬

nity values, is the one most likely to obey the '** Would this be possible? If a juror knows nothing
judge’s admonition that the jury enforce strict about nullification, wouldn’t asking her if she is aware
principles of law. of it give her the very information she lacked? — Eds.
 (

A Fair Jury 77

the community’s sense of values — that must 1 do not see any reason to assume that jurors
explore that subtle and elusive boundary. will make rampantly abusive use of their power.
Admittedly, the concept of blameworthiness
Trust in the jury is, after all, one of the corner¬
does not often receive explicit recognition in the stones of our entire criminal jurisprudence, and
criminal process. But it comes very close to break¬ if that trust is without foundation we must re¬
ing through the surface in cases where the respon¬ examine a great deal more than just the nullifi¬
sibility [mens rea\ defense is raised. [Citing cases] cation doctrine. Nevertheless, some abuse can be
More than twenty-five years ago this Court rec¬ anticipated. If a jury refuses to apply strictly the
ognized “[ojur collective conscience does not controlling principles of law, it may — in conflict
allow punishment where it cannot impose with values shared by the larger community —
blame.”^^ And the Supreme Court, in a well- convict a defendant because of prejudice against
known opinion by Justice Jackson, has pointed him, or acquit a defendant because of sympathy
out that
for him and prejudice against his victim. Our fear
of unjust conviction is plainly understandable.
courts of various jurisdictions, and for the
But it is hard for me to see how a nullification
purposes of different offenses, have devised
instruction could enhance the likelihood of that
working formulae, if not scientific ones, for
result. The instruction would speak in terms of
the instruction of Juries around such terms
acquittal, not conviction, and it would provide no
as “felonious intent,” “criminal intent,” comfort to a juror determined to convict a defen¬
“malice aforethought,” “guilty knowledge,” dant in defiance of the law or the facts of the
“fraudulent intent,” “wilfulness,” “scien¬
case. Indeed, unless the jurors ignored the nul¬
ter,” to denote guilty knowledge, or '‘‘mens lification instruction they could not convict on the
rea," to signify an evil purpose of mental
culpability. By use or combination of these grounds of prejudice alone. Does the judge’s rec¬
itation of the instruction increase the likelihood
various tokens, they have sought to protect
that the jury will ignore the limitation that lies at
those who were not blameworthy in mind
its heart? 1 hardly think so.
from conviction of infamous common-law As for the problem of unjust acquittal, it is
crimes.*^ important to recognize the strong internal check

The very essence of the jury’s function is its role that constrains the jury’s willingness to acquit.
as spokesman for the community conscience in Where defendants seem dangerous, juries are
determining whether or not blame can be unlikely to exercise their nullification power,
imposed. whether or not an explicit instruction is offered.
Of course, that check will not prevent the acquittal
of a defendant who may be blameworthy and dan¬
gerous except in the jaundiced eyes of a jury moti¬
Holloway v. United States, 80 U.S. App. D.C. vated by a perverse and sectarian sense of values.
But whether a nullification instruction would
3, 4-5, 148 F.2d 665, 666-667 (1945), quoted in Durham
V. United States, 94 U.S. App. D.C. 228, 242, 214 F.2d make such acquittals more common is problem¬
862, 876 (1954). atical, if not entirely inconceivable. In any case,
Morissette v. United States, 342 U.S. 246, 252 the real problem in this situation is not the nul¬
(1952) (emphasis supplied). See also United States ex lification doctrine, but the values and prejudice
rel. McCann v. Adams, 126 F.2d 774, 775-776 (2d Cir. that prompt the acquittal. And the solution is not
1942) (L. Hand, J.), rev’d on other grounds, 317 U.S. to condemn the nullification power, but to spot¬
269 (1962); Hart, The Aims of the Criminal Law, 23 light the prejudice and parochial values that
Law & CoNTEMP. Probs. 401 (1958).
underlie the verdict in the hope that public outcry
The nullification doctrine derives from the same
will force a re-examination of those values, and
moral principles as the mens rea or responsibility
deter their implementation in subsequent cases.
defense. But in view of my conclusion that the trial
Surely nothing is gained by the pretense that the
judge should have granted a nullification instruction, it
is unnecessary for me to decide whether reversal would jurors lack the power to nullify, since that pretense
be required on the theory that the instruction that was deprives them of the opportunity to hear the very
offered effectively directed the jury to make a finding instruction that might compel them to confront
that the defendant possessed the necessary mens rea. their responsibility.
JUSTICE AND THE LEGAL SYSTEM

One often-cited abuse of the nullification the fugitive slave law as well as contemporary
power is the acquittal by bigoted juries of whites gaming and liquor laws. A doctrine that can pro¬
who commit crimes (lynching, for example) vide us with such critical insights should not be
against blacks. That repellent practice cannot be driven underground.
directly arrested without jeopardizing important On remand the trial judge should grant
constitutional protections— the double jeopardy defendants’ request for a nullification instruction.
bar and the jury’s power of nullification. But the At the very least, I would require the trial court
revulsion and sense of shame fostered by that to permit defendants to argue the question before
practice fueled the civil rights movement, which the jury. But it is not at all clear that defendants
in turn made possible the enactment of major civil would prevail even with the aid of an instruction
rights legislation. That same movement spurred or argument. After all, this case is significantly
on the revitalization of the equal protection clause different from the classic, exalted cases where
and, in particular, the recognition of the right to juries historically invoked the power to nullify.
be tried before a jury selected without bias. The Here, the defendants have no quarrel with the
lessons we learned from these abuses helped to general validity of the law under which they have
create a climate in which such abuses could not been charged. They did not simply refuse to obey
so easily thrive. a government edict that they considered illegal,
Moreover, it is not only the abuses of nul¬ and whose illegality they expected to demonstrate
lification that can inform our understanding of in a judicial proceeding. Rather, they attempted
the community’s values and standards of blame¬ to protest government action by interfering with
worthiness. The noble uses of the power— the uses others — specifically, the Dow Chemical Company.
that “enhance the over-all normative effect of the This is a distinction which could and should be
rule of law’’— also provide an important input to explored in argument before the jury. If revulsion
our evaluation of the substantive standards of the against the war in Southeast Asia has reached a
criminal law. The reluctance of juries to hold point where a jury would be unwilling to convict
defendants responsible for unmistakable viola¬ a defendant for commission of the acts alleged
tions of the prohibition laws told us much about here, we would be far better advised to ponder
the morality of those laws and about the “crim¬ the implications of that result than to spend our
inality” of the conduct they proscribed. And the time devising stratagems which let us pretend that
same can be said of the acquittals returned under the power of nullification does not even exist.

Moot Court Exercise

Elect one student to play the role of judge, another to play the role of prosecutor, and
a third to play the role of attorney for the defendants.
The scene takes place out of the hearing of the jury. The prosecutor has asked the
judge to instruct the jury as follows: “If your find beyond a reasonable doubt that the
defendants have in fact obstructed entrance to the Kittridge Abortion Clinic, and have in
fact physically stood in the way of doctors and nurses and staff members, employed by the
Clinic, who were attempting to gain entrance to the Clinic, then the law requires you to
find the defendants guilty of trespass and battery.”
The defense attorney objects to this instruction unless it is coupled with the following
instruction: “However, if finding the defendants guilty would be genuinely offensive to your
conscience as jurors, this court will not require you to render such a decision.”
The Kittridge Abortion Clinic is a small building in a neighborhood near your law
school. For four hours one Friday morning, a group of persons carrying placards proclaiming
“Right to Life” physically obstructed and in fact prevented entrance into the Abortion
Clinic of doctors, nurses, and staff members working there. The police were called and
 A Fair Jury 79

ordered the “Right to Life” picketers to carry on their picketing peacefully and in a way
that would not physically obstruct persons who wanted to gain entrance into the Clinic.
The “Right to Life” picketers refused and then resisted arrest. Eventually, they were all
arrested and charged with trespass and battery.
At the trial, the testimony was conclusive that the defendants obstructed entrance to
the abortion clinic. In fact, the prosecutor showed the jurors a videotape of the scene in
front of the clinic where the defendants were blocking the staff members from entering the
clinic. The defense attorney managed to get into the record expert testimony about the evils
of abortion, and some photographs, shown to the jurors, of fetuses that were killed as a
result of abortions.
(1) The student who is playing the role of defense attorney should begin by making
an argument to the judge that the additional instruction should be granted. The judge may
interrupt with questions.
(2) The student who is playing the role of prosecutor should then make an argument
to the judge that the additional instruction should be denied. The judge may interrupt with
questions.
(3) The judge may then freely ask questions of both defense attorney and prosecuting
attorney.
(4) The judge should leave the classroom for five or ten minutes of private deliberation.
In the meantime, the two attorneys should discuss with the class the strategic choices they
made in presenting their arguments, and the class should comment thereon.
(5) The judge should then return and deliver the decision of the court regarding the
suggested instructions, and indicate the court’s reasoning.
(6) The formal session is now over. The class may ask the judge to explain in greater
depth the reasons that led to the judge’s decision.
(7) The larger question posed by the case — jury nullification in the context of the
abortion debate — may now be examined by the class in a general discussion.

Note

In a history of jury nullification in English courts, Thomas Green suggests one source
of the practice in English history:^’
Students of Tudor and early Stuart England have pointed to the fit between, on the
one hand, a system of criminal justice that announced legal imperatives in definitive terms
but provided abundant opportunities for bestowing mercy and, on the other, a religious
ethic that portrayed all men as sinners, as subject to temptation and transgression, but
proffered opportunities for redemption to all but the worst of the fallen. Legal and religious
systems of maintaining order and saving souls, they have asserted, in reality constituted a
single system. Not only did society at large see the matter in this fashion, but authorities
also explained it in these terms. Professor Herrup has developed this argument with particular
force, characterizing Elizabethan and Jacobean enforcement of the criminal law as part of
a religion-based process of rehabilitation, or moral regeneration. This seems to me, in fact.

T. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury
1200-1800, 376-77 (1985).
JUSTICE AND THE LEGAL SYSTEM

a plausible way of understanding the practical application

of legal rules across the entire
period, 1200-1800.
My own study of the history of the criminal trial jury points
to some contours of the
evolution of this worldview that, in some dimension,
is with us still. The tendency to
assimilate the law to prevailing religious notions is undoub
tedly age-old. Religious and
secular norms were not viewed as separate in the Middle Ages.
Post-Reformation Puritanism
intensified belief in the omnipresence of sin and the capacit
y for moral regeneration, but
it did not mark a new departure in the identification of
serious criminal offenses with
breaches of divine command. The royal pardon had always carried
with it— or was supposed
to carry with it— the imprimatur of Godly Mercy; the refusal
to forgive an offender, and
the ritual of execution, were imbued with the notion that the
God beyond earthly redemption. offender was in the eyes of

It may be that from the outset of the common-law period it was assumed
that a variety
of institutions, the jury included, would apply the law in a merciful fashion.
We simply
do not know how far authorities countenanced such behavior. At the very least,
if authorities
did believe that prosecutors, grand jurors, and trial jurors should conform to the
formal
rules of law, they also believed that the Crown should apply those rules in accordan
ce with
the standards of divine justice. I have suggested that society’s reluctance to adhere to formal
rules was far greater than authorities had at the outset assumed it would be. Indeed, society’s
disposition was apparently more merciful than that of the Crown, for early on the Crown
left itself relatively few opportunities to intercede to prevent executions. Social (includin
g
religious) attitudes that were themselves in part— but only in part— engendered by secular
and religious authorities combined with the relative lack of royal institutions of mitigation
to produce a powerful degree of community intercession.

Is nullification from motives of mercy inappropriate in a democracy, where there is no

religious consensus? Is mercy inappropriate when the law being applied is a just law?
Consider these questions as you read the following materials.

Religion and the Law:

The Mormon Experience in the Nineteenth Century*®

Edwin Firmage*’

George Reynolds was an English immigrant, private secretary to Brigham Young, and
a polygamist. In October 1874, he was indicted under the Morrill Act, and subsequently
convicted of polygamy on the testimony of his polygamous wife. On appeal to the Utah
Supreme Court, Reynolds argued that the grand jury that had indicted him had been
constituted improperly. The Utah Supreme Court agreed and reversed Reynolds’ conviction
because the trial court followed federal rather than territorial law in fixing the size of the
grand jury. [United States v. Reynolds, 1 Utah 226 (1875)]
In October 1875, Reynolds was indicted again for violating the Morrill Act. This time,
in accordance with Utah law, the indictment was handed down by a grand jury of fifteen
men, seven Mormons and eight non-Mormons. Reynolds was convicted again and sentenced

50 12 Cardozo L. Rev. 765, 772 (1991).

51 Profes.sor of Law, Univer.sity of Utah College of Law.

 A Fair Jury 81

to two years’ hard labor and a $500 fine. The Utah Supreme Court sustained his conviction.

United States v. Reynolds®^

1 Utah 319
Supreme Court of the Territory of Utah, 1876

BOREMAN, J., delivered the Opinion of the larceny, whether he had stolen anything, or on a
Court: trial for murder, if he had ever committed murder.
The Defendant was indicted for the crime of The question is not, “Did you ever commit the
bigamy or polygamy, found guilty and sentenced crime of polygamy?” But it was, “Are you now
to imprisonment in the penitentiary, and to pay doing so?” They virtually admit that they are.
Would such men make impartial jurors, or such
a fine. He appeals to this Court.
as the law requires? They cannot be such if they
It is alleged as error that the Court below,
are at that very moment practicing the same crime
sustained the challenges of the prosecution to the
as that charged upon the prisoner. A murderer
several jurors who appeared to be otherwise qual¬
will never be convicted, if those engaged in com¬
ified, but who refused to answer a question to
mitting murder are the jurors — they cannot be
criminate themselves. The question was asked as
impartial, and it was not necessary that the dis¬
follows: “Are you living in polygamy?” qualification of the jurors should be shown by
The Court cautioned the jurors that they extrinsic evidence, when they, in effect, admitted
need not answer, if the answer would tend to it themselves.
incriminate them. They declined, upon that Upon the whole case, therefore, we can per¬
ground, to answer. The inevitable conclusion is ceive that no error was committed in the Court
that these jurors were guilty of the crime of polyg¬ below. It is therefore ordered that the judgment
amy. This is not like asking a juror on a trial for of the Court below be affirmed.

52 The following is an excerpt from the opinion in Reynolds’ second appeal.

Reynolds v. United States

98 U.S. 145
United States Supreme Court, 1878

ERROR to the Supreme Court of the Ter¬ punished by a fine of not more than $500,
ritory of Utah. and by imprisonment for a term of not more

This is an indictment found in the District than five years.”

Court for the third judicial district of the Territory The [trial] court also, when Homer Brown
of Utah, charging George Reynolds with bigamy, was called as a juror, allowed the district attorney
in violation of sect. 5352 of the Revised Statutes, to ask him the following questions: Q. “Are you
which, omitting its exceptions, is as follows: — living in polygamy?” A. “I would rather not
answer that.” The court instructed the witness that
“Every person having a husband or wife liv¬ he must answer the question, unless it would crim¬
ing, who marries another, whether married inate him. By the district attorney: “You under¬
or single, in a Territory, or other place over stand the conditions upon which you refuse?” A.
which the United States have exclusive juris¬ “Yes, sir.” Q. “Have you such an opinion that
diction, is guilty of bigamy, and shall be you could not find a verdict for the commission
JUSTICE AND THE LEGAL SYSTEM

of that crime?” A. “I have no opinion on it was almost exclusively a feature of the life of
in
this particular case. I think under the evidence Asiatic and of African people. At common law,
and the law I could render a verdict accordingly.” the second marriage was always void (2 Kent,
Whereupon the United States challenged the said Com. 79), and from the earliest history of Eng¬
Brown for favor, which challenge was sustained
land polygamy has been treated as an offence
by the court, and the defendant excepted. against society.
John W. Snell, also a juror, was asked by In our opinion, the statute immediately
the district attorney on voir dire: Q. “Are you under consideration is within the legislative power
living in polygamy?” A. ”1 decline to answer that of Congress. It is constitutional and valid as pre¬
question.” Q. “On what ground?” A. “It might scribing a rule of action for all those residing in
criminate myself; but I am only a fornicator.” the Territories, and in places over which the United
Whereupon Snell was challenged by the United States have exclusive control. This being so, the
States for cause, which challenge was sustained,
only question which remains is, whether those who
and the defendant excepted.
make polygamy a part of their religion are
MR. CHIEF JUSTICE WAITE delivered the excepted from the operation of the statute. If they
opinion of the court. are, then those who do not make polygamy a part
of their religious belief may be found guilty and
The questions raised upon these assignments
punished, while those who do, must be acquitted
of error are not whether the district attorney
and go free. This would be introducing a new
should have been permitted to interrogate the
element into criminal law. Laws are made for the
jurors while under examination upon their voir
dire as to the fact of their living in polygamy. No government of actions, and while they cannot
interfere with mere religious belief and opinions,
objection was made below to the questions, but
only to the ruling of the court upon the challenges they may with practices. Suppose one believed
that human sacrifices were a necessary part of
after the testimony taken in answer to the ques¬
tions was in. From the testimony it is apparent religious worship, would it be seriously contended
that all the jurors whom the challenges related that the civil government under which he lived
were or had been living in polygamy. It needs no could not interfere to prevent a sacrifice? Or if a
argument to show that such a jury could not have wife religiously believed it was her duty to burn
gone into the box entirely free from bias and herself upon the funeral pile of her dead husband,
prejudice. [T]he jurors were incompetent and would it be beyond the power of the civil gov¬
properly excluded. ernment to prevent her carrying her belief into
practice?
[The Court went on to hold that the statute pro¬ So here, as a law of the organization of soci¬
hibiting polygamy in the Territory of Utah was ety under the exclusive dominion of the United
constitutional.]
States, it is provided that plural marriages shall
not be allowed. Can a man excuse his practices
Congress cannot pass a law for the govern¬
ment of the Territories which shall prohibit the to the contrary because of his religious belief? To
free exercise of religion. The first amendment to permit this would be to make the professed doc¬
the Constitution expressly forbids such legislation. trines of religious belief superior to the law of the
Polygamy has always been odious among the land, and in effect to permit every citizen to
northern and western nations of Europe, and, become a law unto himself. Government could
until the establishment of the Mormon Church, exist only in name under such circumstances.

Notes and Questions

1. Reynolds had more than one wife. He was entitled to have more than one wife under
the Mormon religion which he practiced. Indeed, the religion taught him — and his wives —
that polygamy was desirable in the eyes of God.
 A Fair Jury 83

Reread the statute under which Reynolds was convicted. It says that “Every person
having a husband or wife living, who marries another, whether married or single ... is guilty
of bigamy.’’ If marrying another person is criminal and hence illegal under this statute,
how was it possible for Reynolds to “marry another’’? Wasn’t the second marriage impossible
as a matter of law? Could Reynolds have argued that he was not “married’’ a second time
as far as the statutory definition of “marriage” was concerned because any such second
marriage would have been a legal impossibility? Could Reynolds have argued that, irre¬
spective of the relationship that he might have with the second woman who went through
a particular Mormon ceremony with him, that relationship could not possibly be called
“marriage’’ under the federal statute?
How could Reynolds have been successfully prosecuted for “bigamy’’? How can anyone
ever be successfully prosecuted for “bigamy’’? Isn’t the argument of the last paragraph a
possible one for all “bigamists”?
2. Why did the prospective jurors (Brown and Snell) decline to answer the prosecutor’s
question whether they were living in polygamy? Could they not have mentally applied a
variation on the reasoning in the preceding question? Could they not have said to themselves
that of course they are not living in “polygamy” because second marriages are illegal and
hence, under the civil law, they could not possibly be validly married more than once?
Could they have answered, “No, I am not living in polygamy”?
3. Would such an answer have been dishonest? As a literal matter? As an interpretive
matter? As a common-sense matter?
4. Is it not clear that if either Brown or Snell had been on the jury, the jury would
not have convicted Reynolds? Recall that Reynolds was the very first “test” of the new
statute. There was a substantial argument that could be made that the statute violated the
First Amendment of the Constitution in that it deprived consenting adult Mormons of the
possibility of faithfully exercising their religious beliefs. Hence, if the only juries that could

be “representative of the community” in Utah included some jurors who were practicing
polygamists, those jurors — by invariably voting for acquittal — would have been able to
frustrate the statute entirely. Wouldn’t they thus have ensured their own freedom to go on
living in polygamy? Wasn’t Reynolds convicted precisely because some members of the
community— namely, practicing polygamists— were excluded from the jury?
5. Were the Supreme Court of the Territory of Utah and the U.S. Supreme Court
correct in analogizing the disqualification of Brown and Snell to the disqualification of
murderers or larcenists on juries in murder or larceny cases? Isn’t murder or larceny clearly
a crime? Why did both Courts say that polygamy was a crime? If your answer to this last
question is, “because Congress made it a crime,” consider whether Congress had the power
to make it a crime. If outlawing polygamy was unconstitutional as a violation of the First
Amendment, then Congress did not have the power to make it a crime.
But didn’t the Supreme Court already know that it was going to hold, later in its
opinion, that Congress did have that power, and wasn’t this foreknowledge the reason that
the Court said that the jurors could be excluded because of the reasonable suspicion that
they were polygamists?

6. Yet didn’t the statute outlaw bigamy and not polygamy! The Mormon religion said
nothing about “bigamy.” Presumably the Mormon religion would have been totally opposed
JUSTICE AND THE LEGAL SYSTEM

to bigamy, with its connotation of fraud.” The Mormon religio

n was in favor of “polyg¬
amy”— plural wives with the full consent of all parties (indeed
, the first wife could “veto”
any individual subsequent wife under the Mormon practice at
the time).*^
When the prosecutor asked “Are you living in polygamy?” could Snell have given any
of the following impertinent answers:

(a) No, I’m living in Salt Lake City.

(b) I don t know what you mean by “polygamy.”
(c) What do you mean by “polygamy”?
(d) I thought this case was about “bigamy.”
(e) Ask the Elders of my religion.
(f) Ask my lawyer.
(g) Ask my live-in female roommates.

Maybe his actual answer was the most impertinent of all: “I am only a fornicator.”
But whatever answer Snell might have given, isn’t it clear that the judge would have
dismissed him for cause anyway?
7. Suppose you are a prospective juror and the prosecutor asks you whether you are
morally opposed to capital punishment. Suppose further that you are in general opposed
to capital punishment, but in your mind you are willing to make at least one exception:
you are in favor of capital punishment for a criminal who has been sentenced to life
imprisonment who murders a prison guard. You are in favor of this exception because you
believe that otherwise there would be no deterrence at all against the murder of prison
guards by prisoners who have been sentenced to life imprisonment.
The prosecutor asks you, “Are you morally opposed to capital punishment?” Would
you answer “No”? Why? Why not?

Concluding Questions

1. The present-day legal systems of China and the Soviet Union routinely admit any
and all character evidence in criminal trials. Sometimes the evidence is nothing more than
uncorroborated neighborhood gossip about the accused. But the goal of criminal trials in
those systems is not punishment; rather, it is rehabilitation. A person found guilty is not
a “criminal” so much as a “deviant.” Rehabilitation, then, consists of forceful attempts
to change the deviant’s character so that he will better “adjust” to his community. Are
those systems a desirable alternative to the American system?
2. Can the prejudices of juries in the American system of law ever be eliminated?
Should they be?

*3 The classic bigamist is the person who marries a second time without the second spouse knowing about
the first marriage.

3^ There were economic and political reasons in favor of polygamy. Economically, the Mormons believed that
only the wealthiest persons should have more than one wife. In this fashion, the wealth was “distributed” to more
persons than it would have been under a monogamous system. With respect to other political issues, the Mormons
were decades ahead of the rest of the country in advocating voting rights and full political participation for women.
 A Fair Jury 85
s:* **

3. Is it reasonable to suppose that juries can “apply the law” to the facts of a case,
armed with nothing more than the judge’s “instructions to the jury”? Judge Jerome Frank
quotes another judge, Judge Curtis Bok, as saying:”
Juries have the disadvantage ... of being treated like children while the testimony is going
on, but then being doused with a kettlefull of law, during the charge [the judge’s instructions],
that would make a third-year law' student blanch.

Judge Frank adds that a case was reported in which the jurors later explained their verdict

We couldn’t make head or tail ot the case, or follow all the messing around the lawyers
did. None of us believed the witnesses on either side, anyway, so we made up our minds
to disregard the evidence on both sides and decide the case on its merits.

4. In each of the cases we have studied, the trial judge ruled or should have ruled on
the admissibility of testimony or evidence that was arguably prejudicial. Doesn’t this assume
that the trial judge has no prejudice of his or her own? Further, aren’t we assuming that
when the trial judge rules on admissibility, he or she will somehow avoid being unduly
swayed in the very process of hearing about the arguably prejudicial testimony or evidence?
Keep these questions in mind as we examine the role of the judge in Chapter 3.

** J. Frank, Courts on Trial 117 (1949).

** Id. at 114.
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 87

A Fair Judge
CHAPTER THREE

3.1 Do judges ever decide “according to law’’?

The Judgment Intuitive: The Function of the “Hunch’’ in Judicial Decision’

Joseph C. Hutcheson, Jr.’

I remember once, in the trial of a patent case, where it was contended with great vigor
on the one side that the patent evidenced invention of the highest order, and with equal
vigor on the other that the device in question was merely a mechanical advance, I announced,
almost without any sense of incongruity, that I would take the case under advisement, and
after “having well and exactly seen and surveyed, overlooked, reviewed, read and read over
again” etc.,’ all of the briefs, authorities and the record, would wait awhile before deciding
to give my mind a chance to hunch it out, for if there was the flash of invention in the
device my mind would give back an answering flash; while if there were none my mind
would in a dully cogitative way, find only mechanical advance.
One of the lawyers, himself a “huncher,” smiled and said— “Well, Your Honor, I am
very grateful to you for having stated from the Bench what I have long believed, but have
hesitated to avow, that next to the pure arbitrament of the dice in judicial decisions, the
best chance for justice comes through the hunch.” The other lawyer, with a different type
of mind only looked on as though impatient of such foolery.
But I, proceeding according to custom, got my hunch, found invention and infringe¬
ment, and by the practice of logomachy* so bewordled my opinion in support of my hunch
that I found myself in the happy situation of having so satisfied the intuitive lawyer by the
correctness of my hunch, and the logomachic lawyer by the spell of my logomachy, that
both sides accepted the result and the cause was ended.

1 14 Cornell L.Q. 274, 280, 282, 284-85, 286-87 (1929).

2 United States District Judge for the Southern District of Texas.
3 The quotation is from Rabelais.

« From the Greek logos (speech, words) and mache (battle). Hence, an argument about words. [-Eds.]
ound.* *

JUSTICE AND THE LEGAL SYSTEM

Collision cases in admiralty furnish excellent illustrations of the

difficulty of arriving
at a sound fact conclusion by mere reasoning upon objective data.
In these cases, as every
trier knows, the adherents of the respective ships swear most lustily
in true seagoing fashion
for their side, and if a judge were compelled to decide the case by observi
ng the demeanor
of the witnesses alone, he would be in sad plight, for at the end of
eleven years upon the
Bench I am more convinced than ever that the shrewdest, smartest liars
often make the
most plausible and satisfactory witnesses, while the humblest and most honest fellows
often,
upon the witness stand, acquit themselves most badly.
Judges who have tried many patent cases, who have heard the testimony of
experts,
the one affirming the matter to be merely an advance in mechanical steps, the
other to be
invention of the highest order; the one affirming prior use, the other denying
it; the one
affirming it to be the flight of genius into new fields, the other, the mere dull trudging
of
an artisan, know that for a just decision of such causes no objective criteria can be relied
on. They well know that there must be in the trier something of the same imaginative
response to an idea, something of that same flash of genius that there is in the inventor,
which all great patent judges have had, that intuitive brilliance of the imagination, that
luminous quality of the mind, that can give back, where there is invention, an answering
flash for flash.

Time was when judges, lawyers, law writers and teachers of the law refused to recognize
in the judge this right and power of intuitive decision. It is true the trial judge was always
supposed to have superior facilities for decision, but these were objectivized in formulas,
such as: the trial judge has the best opportunity of observing the witnesses, their demeanor;
the trial judge can see the play and interplay of forces as they operate in the actual clash
of the trial.

Under the influence of this kind of logomachy, this sticking in the “skin” of thought,
the trial judge’s superior opportunity was granted, but the real reason for that superior
position, that the trial creates an atmosphere springing from but more than the facts
themselves, in which and out of which the judge may get the feeling which takes him to
the desired end, was deliberately suppressed.
Later writers, however, not only recognize but emphasize this faculty, nowhere more
attractively than in Judge Cardozo’s lectures in 192U while Max Radin, in 1925, in a most
sympathetic and charming way, takes the judge’s work apart, and shows us how his wheels
go

He tells us, first, that the judge is a human being; that therefore he does not decide
causes by the abstract application of rules of justice or of right, but having heard the cause
and determined that the decision ought to go this way or that way, he then takes up his
search for some category of the law into which the case will fit.
He tells us that the judge really feels or thinks that a certain result seems desirable,
and he then tries to make his decision accomplish that result. “What makes certain results
seem desirable to a judge?” he asks, and answers his question that that seems desirable to

5 B. Cardozo, The Nature of the Judicial Process (1921).

* Radin, Theory of Judicial Decision 2 A.B.A.J. 359 (1925).
 A Fair Judge 89

the judge which, according to his training, his experience, and his general point of view,
strikes him as the jural consequence that ought to flow from the facts, and he advises us
that what gives the judge the struggle in the case is the effort so to state the reasons for
his judgment that they will pass muster.
Now what is he saying except that the judge really decides by feeling, and not by

judgment: by “hunching” and not by ratiocination, and that the ratiocination appears only
in the opinion?
Now what is he saying but that the vital, motivating impulse for the decision is an
intuitive sense of what is right or wrong for that cause, and that the astute judge, having
so decided, enlists his every faculty and belabors his laggard mind, not only to justify that
intuition to himself, but to make it pass muster with his critics?
There is nothing unreal or untrue about this picture of the judge, nor is there anything
in it from which a just judge should turn away. It is true, and right that it is true, that
judges really do try to select categories or concepts into which to place a particular case
so as to produce what the judge regards as a righteous result, or, to avoid any confusion

in the matter of morals, I will say a “proper result.”

This is true. I think we should go further, and say it ought to be true. No reasoning
applied to practical matters is ever really effective unless motivated by some impulse.
If the judge sat upon the Bench in a purely abstract relation to the cause, his opinion
in difficult cases would be worth nothing. He must have some motive to fire his brains, to
“let his mind be bold.”
By the nature of his occupation he cannot have advocacy for either side of the case
as such, so he becomes an advocate, an earnest one, for the — in a way — abstract solution.
Having become such advocate, his mind reaches and strains and feels for that result. He

says with Elihu, the son of Barachel, the Buzite, of the family of Ram — “There is a spirit
in man, and the breath of the Almighty giveth him understanding. It is not the great that
are wise, nor the aged that understand justice.— Hearken to me; I also will show mine
opinion. For I am full of matter; the spirit within me constraineth me. Behold my belly is
as wine which hath no vent. Like new wineskins it is ready to burst.”^
And having travailed and reached his judgment, he struggles to bring up and pass in
review before his eager mind all of the categories and concepts which he may find useful
directly or by analogy, so as to select from them that which in his opinion will support his
desired result.

For while the judge may be, he cannot appear to be, arbitrary. He must at least appear
reasonable, and unless he can find a category which will at least “semblably” support his
view, he will feel uncomfortable.

7 Job, 32: 9, 10, 18, 19.

JUSTICE AND THE LEGAL SYSTEM

What Courts Do in Fact*

Jerome Frank’

But talks with candid judges have begun to disclose that, whatever
is said in opinions,
the judge often arrives at his decision before he tries to explain it. With
little or no preliminary
attention to legal rules or a definite statement of facts, he often
makes up his mind that
Jones should win the lawsuit, not Smith; that Mrs. White should have
the custody of the
children; that McCarthy should be reinstated as keeper of the dog pound.
After the judge
has so decided, then the judge writes his “opinion.”
The judge s opinion makes it appear as if the decision were a result solely of playing
the game of law-in-discourse. But this explanation is often truncated, incomplete.
Worse,
it is frequently unreal, artificial, distorted. It is in large measure an after-thought. It omits
all mention of many of the factors which induced the judge to decide the case.’® Those
factors (even to the extent that the judge is aware of them) are excluded from the opinion.
So far as opinions are concerned, those factors are tabu, unmentionables.
Opinions, then, disclose but little of how judges come to their conclusions. The opinions
are often ex post facto; they are censored expositions. To study those eviscerated expositions
as the principal bases of forecasts of future judicial action is to delude oneself. It is far
more unwise than it would be for a botanist to assume that plants are merely what appears
above the ground, or for an anatomist to content himself with scrutinizing the outside of
the body.

It is helpful for the lawyer to borrow the point of view of the political scientist and
look at the judge as one kind of governmental official. When William Howard Taft, as
President, gave his reasons for recommending or vetoing a bill, urging the adoption of a
treaty, espousing a higher tariff, or finding that charges against his Secretary of the Interior
were groundless, many wise students of government recognized that his explanations were
sometimes artificial or incomplete and that sometimes he formulated them long after he
had reached the decisions which he formally explained. If William Howard Taft, when on
the bench, followed a not unlike course, he was adopting the admitted practice of some of
the ablest of those governmental officials we call judges. One recalls the story about Marshall

(recently quoted by Llewellyn): “Judgment for the plaintiff; Mr. Justice Story will furnish

® 26 111. L. Rev. 645, 653-55 (Northwestern Law School, 1932).

’ In 1941 Jerome N. Frank became a United States Circuit Court Judge.
The artificial character of opinions is usually not due to hypocrisy or intellectual or moral dishonesty. As
1 have devoted a considerable portion of a book to pointing out the unconscious self-deception involved in many
judicial opinions, 1 shall not redevelop that thesis here. See Frank, Law and the Modern Mind 37, 120, 144-
147, 152-153, 362 (1930).
 A Fair Judge 91

the authorities.”" Chancellor Kent, when off the bench, explained that in arriving at a
judicial decision he first made himself “master of the facts.” That done, he wrote,
I saw where justice lay, and the moral sense decided the court half the time. I then sat
down to search the authorities ... I might once in a while be embarrassed by a technical
rule, but I almost always found principles suited to my view of the case.

A member of an upper court once told me that the chief justice said to him after the
oral argument of a case, “We’ll have to lick plaintiff somehow and it’s up to you to find
some theory and authorities that will help us to it.” The chief justice of another important
upper court recently wrote a friend of mine that in his court it was the usual practice for

the judges first to determine the “abstract justice” of a case and then to examine the “law.”

Transcendental Nonsense and the Functional Approach"

Felix S. Cohen

The “hunch” theory of law, by magnifying the personal and accidental factors in
judicial behavior, implicitly denies the relevance of significant, predictable, social deter¬
minants that govern the course of judicial decision. Those who have advanced this viewpoint
have performed a real service in indicating the large realm of uncertainty in the actual law.
But actual experience does reveal a significant body of predictable uniformity in the behavior
of courts. Law is not a mass of unrelated decisions nor a product of judicial bellyaches.
Judges are human, but they are a peculiar breed of humans, selected to a type and held
to service under a potent system of governmental controls. Their acts are “judicial” only
within a system which provides for appeals, re-hearings, impeachments, and legislation.
The decision that is “peculiar” suffers erosion — unless it represents the first salient man¬
ifestation of a new social force, in which case it soon ceases to be peculiar. It is more useful

to analyze a judicial “hunch” in terms of the continued impact of a judge’s study of

precedents, his conversations with associates, his reading of newspapers, and his recollections
of college courses, than in strictly physiological terms.

” Put that story in a formal-law speech and it reads: “The general rule of law to be applied to a particular
case must be conceived as existing before the particular concrete case to which it is applied occurred.” Cf. Zane
“German Legal Philosophy” (1918) 16 Mich. Law Rev. 287 at 311. Zane also says (338): “The rule of law and
its application may be reached in a thousand different ways, but a judgment of a court is always this pure
deduction. Now it must be apparent to any one who is willing to admit the rules governing rational mental action
that unless the rule of the major premise exists as antecedent to the ascertainment of the fact or facts put into
the minor premise, there is no judicial act in stating the judgment.”
Of course, the mere fact that the reason given for an act or a judgment is ex post facto does not invalidate
that reason. Jones may hit Smith, or vote for Hoover, or make love to a girl, or explore the arctic without reflecting
on his conduct. When asked to explain or justify his acts he may give excellent reasons which are entirely satisfactory.
But sometimes it is impossible to ascertain the soundness of those reasons because it is impossible to ascertain
the truth of the facts asserted in his fact premise. This is peculiarly true of judicial opinions because the facts

stated in the judge’s fact premise are often “subjective.”

12 35 CoLUM. L. Rev. 809, 843 (1935).
JUSTICE AND THE LEGAL SYSTEM

Law and the Modern Mind’^

Jerome Frank

Once trapped by the belief that the announced rules are the
paramount thing in the
law, and that uniformity and certainty are of major import
ance, and are to be procured
by uniformity and certainty in the phrasing of rules, a judge
is likely to be affected, in
determining what is fair to the parties in the unique situation before
him, by consideration
of the possible, yet scarcely imaginable, bad effect of a just opinion in
the instant case on
possible unlike cases which may later be brought into court. He then
refuses to do justice
in the case on trial because he fears that “hard cases make bad laws.”
And thus arises
what may aptly be called “injustice according to law.”

’3 P. 154 (1930).

Notes and Questions

1. The excerpts from articles you have just read were written between 1929 and 1935
as part of the movement in American law called “legal realism.” The realists believed that
legal rules, legal principles, and legal theory have no direct effect upon a judicial decision.
The decision is not “constrained” by law; rather, law is a collection of words that can be
drawn upon to rationalize decisions that have already been reached for other reasons. (For
more on “constraint,” see the Fish excerpt in Section 3.)
As you can well expect, realism was a radical position in its time. Its influence in
American legal studies was at its strongest in — roughly speaking — the 1930s and 1940s.
With the 1950s as a kind of transitional period, American legal scholarship took a theoretical
turn. In the 1960s and 1970s, theorizing about law flourished in books and journals, and
judges cited theories in their court opinions. However, in the 1980s, we have seen a turn
back to legal realism among some of the writers (certainly not all) that have become
associated with the movement called “critical legal studies.” In addition, since the 1930s,
developments in the related fields of philosophy and literary interpretation have reinforced
the intellectual soundness of the legal realist position.
Although the jurisprudential debate whether law and theory constrain judicial decisions
is not itself the subject of this course, the following questions ask you to think about the
relation of law to justice in the context of the role of the judge.
2. Frank says that it is helpful for the lawyer to “look at the judge as one kind of
governmental official.” What are the relevant similarities and differences? Should a lawyer
act toward a judge the way a lobbyist acts toward a government official? Doesn’t the lobbyist
sometimes suggest, or at least strongly imply, the promise of political help toward the
official’s next re-election campaign?’^ Federal judges do not run for re-election, but some

Later in this chapter we will look at the Texaco-Pennzoil dispute in Texas, where judges were accused of
favoring lawyers who made large contributions to their election campaigns.
 A Fair Judge 93

state judges do. Would the “lobbyist” approach to state judges ever be justified?
3. Cohen asserted, as you have read, that there is “a significant body of predictable
uniformity in the behavior of courts. Law is not a mass of unrelated decisions nor a product
of judicial bellyaches.” Do you agree? If so, what accounts for the uniformity — the law
itself, or theories of law, or what Cohen calls “social determinants”? How would Hutcheson
and Frank answer Cohen?

4. Is it possible that the uniformity Cohen talks about is only an illusory uniformity —
that if we construct legal theories of sufficient vagueness and generality, then many cases
can be subsumed under them, leading us to conclude that there is uniformity? Is it possible
that the closer we look at the facts of any two cases, the less we are able to construct a
legal theory or point to a legal rule that applies to both cases? Consider the relation between
the Reyes case (cited in Rojas I) and Rojas II. Are the two results consistent or inconsistent?
Does your answer depend on which facts you select as a description of each case? If so,
what theory or law guided you in your selection of those particular facts? Why did you
omit other facts? How did the courts know which facts to mention and which to omit,
considering that there was a world of facts to choose from?

5. Suppose a judge, looking at the facts of a case, sees that the “application” of a
given rule of law would tend to lead to an unjust result in that case. What would Hutcheson

and Frank do with the rule? Would they ignore it? Would they say it doesn’t apply? Would
they find new facts to show that the rule doesn’t apply? Would they say that no rule ever
applies, and hence this one doesn’t? Would they say the same thing that they dol Or would
they do one thing and rationalize it by saying something else?
6. Justice Brandeis is said to have remarked: “To be effective in this world you have
to decide which side is probably right; and, once you decide, you must act as if it were one

hundred per cent right.’”®

Is this what judges really do? If so, should they? Is doing it a matter of justice, or of
the appearance of justice?
7. Keep your answers to Question 5 in mind as you read the following excerpts and
cases. Note especially that the second case was decided by Judge Frank, the same judge
who a decade earlier wrote the article and book from which you have read excerpts.

’5 This was purportedly an oral remark by Justice Brandeis to Thomas Corcoran, who repeated it to Nathaniel
Nathanson, who repeated it to John Coons. See Coons, Compromise as Precise Justice, 68 Cal. L. Rev. 250,
260 n.l3 (1980).
JUSTICE AND THE LEGAL SYSTEM

3.2 Judicial bias: Framework

Berger v. United States

255 U.S. 22
Supreme Court of the United States
Certificate from the Circuit Court of Appeals for
the Seventh Circuit
January 31, 1921

MR. JUSTICE MCKENNA delivered the known as the Espionage Act, c.30, 40 Stat. 217.’*
opinion of the court. In due time they invoked § 21 by filing an affidavit
charging Judge Landis, who was to preside at the
Section 21 of the Judicial Code provides as trial, with personal bias and prejudice against
follows:
them, and moved for the assignment of another
judge to preside at the trial. The motion was
“Whenever a party to any action or pro¬
ceeding, civil or criminal, shall make and file an denied and upon the trial defendants were con¬

affidavit that the judge before whom the action victed and each sentenced to twenty years’ impris¬
onment. From the judgment and sentence they
or proceeding is to be tried or heard has a personal took the case to the United States Circuit Court
bias or prejudice either against him or in favor
of Appeals for the Seventh Circuit. That court,
of any opposite party to the suit, such judge shall reciting that certain questions of law under § 21
proceed no further therein, but another judge have arisen upon the affidavit and motion upon
shall be designated in the manner prescribed in which the court is in doubt and upon which it
the section last preceding, or chosen in the manner
desires the advice and instructions of this' court,
prescribed in section twenty-three, to hear such certifies questions of the sufficiency of the affi¬
matter. Every such affidavit shall state the facts davit and of the duty of the judge thereunder, and
and the reasons for the belief that such bias or also certifies the affidavit and other proceedings
prejudice exists, [and shall be filed not less than upon such motion.
ten days before the beginning of the term at which The affidavit, omitting formal and unnec¬
the proceeding is to be heard, or good cause shall essary parts, is as follows: Petitioners (defendants)
be shown for failure to file it within such time]. represent “that they jointly and severally verily
believe that His Honor Judge Kenesaw Mountain
No party shall be entitled in any case to file more
Landis has a personal bias and prejudice against
than one such affidavit; and no such affidavit
certain of the defendants, to wit: Victor L. Berger,
shall be filed unless accompanied by a certificate
William F. Kruse and Adolph Germer, defendants
of counsel of record that such affidavit and appli¬ in this cause, and impleaded with J. Louis Eng-
cation are made in good faith. The same pro¬
ceedings shall be had when the presiding judge
shall file with the clerk of the court a certificate
that he deems himself unable for any reason to “Whoever, when the United States is at war, shall
willfully make or convey false reports or false statements
preside with absolute impartiality in the pending
with intent to interfere with the operation or success of
suit or action.” the military or naval forces of the United States or to
February 2, 1918, there was returned into the promote the success of its enemies and whoever, when
the United States is at war, shall willfully cause or
District Court of the United States for the North¬
attempt to cause insubordination, disloyalty, mutiny, or
ern District of Illinois, an indictment against
refusal of duty, in the military or naval forces of the
plaintiffs in error (it will be convenient to refer United States, or shall willfully obstruct the recruiting
to them as defendants), charging them with a vio¬ or enlistment service of the United States, shall be pun-
lation of the Act of Congress of June 15, 1917,
i.shed. ...”
 A Fair Judge 95

dahl and Irwin St. John Tucker, defendants in this Germer, National Secretary of the Socialist party;
case. That the grounds for the petitioners’ beliefs William F. Kruse, editor of the Young Socialists
are the following facts: That said Adolph Germer
Magazine, a Socialist publication; and J. Louis
was born in Prussia, a state or province of Ger¬ Engdahl disapproved the entrance of the United
many; that Victor L. Berger was born in Rehback, States into this war.
Austria; that William F. Kruse is of immediate
“Your petitioners further aver that the defen¬
German extraction; that said Judge Landis is prej¬ dants Tucker and Engdahl were born in the United
udiced and biased against said defendants because States and were not born in enemy countries, and
of their nativity and in support thereof the defen¬ are not immediate descendants of persons born
dants allege, that, on information and belief, on in enemy countries, but verily believe because they
or about the 1st day of November said Judge are impleaded with Berger, Kruse and Germer that
Landis said in substance: ‘If anybody has said they as well as Berger, Germer and Kruse can not
anything worse about the Germans than I have 1 receive a fair and impartial trial, and that the
would like to know it so I can use it.’ And referring prejudice of said Judge Landis against said Ber¬
to a German who was charged with stating that ger, Germer and Kruse would prejudice the
‘Germany had money and plenty of men and wait defense of said defendants Tucker and Engdahl
and see what she is going to do to the United
impleaded in this case.”
States,’ Judge Landis said in substance: ‘One must The affidavit was accompanied by the cer¬
have a very judicial mind, indeed, not to be prej¬ tificate of Seymour Stedman, attorney for defen¬
udiced against the German Americans in this dants, that the affidavit and application were
country. Their hearts are reeking with disloyalty. made in good faith.
This defendant is the kind of a man that spreads The questions certified are as follows:
this kind of propaganda and it has been spread
(1) Is the aforesaid affidavit of prejudice suf¬
until it has affected practically all the Germans
ficient to invoke the operation of the act which
in this country. This same kind of excuse of the
provides for the filing of affidavit of prejudice of
defendant offering to protect the German people
is the same kind of excuse offered by the pacifists a judge?
(2) Did said Judge Landis have the lawful
in this country, who are against the United States
right to pass upon the sufficiency of the said affi¬
and have the interests of the enemy at heart by
defending that thing they call the Kaiser and his davit of his prejudice, or upon any question aris¬
ing out of the filing of said affidavit?
darling people. You are the same kind of a man
(3) Upon the filing of the said affidavit of
that comes over to this country from Germany to
prejudice of said Judge Landis, did the said Judge
get away from the Kaiser and war. You have
have lawful right and power to preside as judge
become a citizen of this country and lived here
as such, and now when this country is at war with on the trial of plaintiffs in error upon said indict¬
ment?
Germany you seek to undermine the country
which gave you protection. You are of the same The basis of the questions is § 21, and the
mind that practically all the German-Americans primary question under it is the duty and power
are in this country, and you call yourselves Ger¬ of the judge — whether the filing of an affidavit
man-Americans. Your hearts are reeking with dis¬ of personal bias or prejudice compels his retire¬
loyalty. I know a safeblower, he is a friend of ment from the case or whether he can exercise a
mine, who is making a good soldier in France. judgment upon the facts affirmed and determine
He was a bank robber for nine years, that was his qualification against them and the belief based
his business in peace time, and now he is a good upon them?
soldier, and as between him and this defendant, These alternatives present the contentions in
the case. Defendants contend for the first; the
I prefer the safeblower.’
“These defendants further aver that they United States contends for the second. The asser¬
have at no time defended the Kaiser, but on the tion of defendants is that the mandate of the sec¬
contrary they have been opposed to an autocracy tion is not subject to the discretion or judgment
in Germany and every other country; that Victor of the judge. The assertion of the United States
L. Berger, defendant herein, editor of the Mil¬ is that the motion and its supporting affidavit,
waukee Leader, a Socialist daily paper; Adolph like other motions and their supporting evidence.
JUSTICE AND THE LEGAL SYSTEM

are submitted for decision and the exercise of the ings. Henry v. Speer, 201 Fed. Rep. 869, was a
judicial judgment upon them. In other words, the petition for mandamus to require an affidavit of
action of the affidavit is not “automatic,” to quote bias against District Judge Speer to be certified
the Solicitor General, but depends upon the sub¬ to the senior circuit judge that the latter might
stance and merit of its reasons and the truth of determine its sufficiency, and to restrain Judge
its facts, and upon both the judge has jurisdiction Speer from exercising jurisdiction of the case. The
to pass. The issue is, therefore, precise, and while writ was refused on the ground that the affidavit
not in broad compass is practically of first impres¬ did not conform to § 21 in that it omitted to charge
sion as now presented. “personal” bias, a charge of such bias, it was
In Glasgow v. Moyer, 225 U.S. 420, the sec¬ held, being a necessary condition. The court, (Cir¬
tion was referred to but not passed upon. In Ex cuit Court of Appeals for the Fifth Circuit), by
parte American Steel Barrel Co., 230 U.S. 35, the
Judge Meek, said, “Upon the making and filing
phase of the section presented here was not pre¬ by a party of an affidavit under the provisions of
sented. There proceedings in bankruptcy had pro¬ section 21, of necessity there is imposed upon the
gressed to a decree of adjudication, and the judge judge the duty of examining the affidavit to deter¬
who had conducted them was charged by certain mine whether or not it is the affidavit specified
creditors with bias and prejudice based on his and required by the statute and to determine its
rulings in the case. Such use of § 21 was disap¬ legal sufficiency. If he finds it to be legally suf¬
proved. “It was never intended,” it was said, “to ficient then he has no other or further duty to
enable a discontented litigant to oust a judge perform than that prescribed in section 20 of the
because of adverse rulings made, for such rulings Judicial Code. He is relieved from the delicate
are reviewable otherwise, but prevent his future and trying duty of deciding upon the question of
action in the pending cause.” As pertinent to the his own disqualification.” This comment sustains
comment and to the meaning of § 21, we may defendants’ view of § 21 and marks a distinction
say, that Judge Chatfield, against whom the affi¬ between determining the legal sufficiency of the
davit was directed, said that he felt that the inten¬ affidavit and passing upon the truth of its state¬
tion of § 21 was “to cause a transfer of the case, ments, a distinction to which we shall presently
without reference to the merits of the charge of advert.

bias,” and he did so immediately, in order, as he The cases (one being excepted) to the extent
said, “that the application of the creditors” might they go, militate against the contention of the
“be considered as speedily as possible by such Government and they have confirmation in the
words of the section. Their declaration is that
Judge as” might “be designated.” Another judge
was designated and to restrain action by the latter “whenever a party to any action or proceeding,
and vacate the orders that he had made, and to civil or criminal, shall make and file an affidavit
command Judge Chatfield to resume jurisdiction, that the judge before whom the action or pro¬
mandamus was sought. It was denied. The case ceeding is to be tried or heard has a personal bias
establishes that the bias or prejudice which can or prejudice either against him or in favor of any
be urged against a judge must be based upon opposite party to the suit, such judge shall pro¬
something other than rulings in the case. ceed no further therein, but another judge shall
The cases at circuit in which § 21 was con¬ be designated ... to hear such matter.” There is
sidered have not much guidance. They, however, no ambiguity in § 21 and seemingly nothing upon
deserve attention. Ex parte N.K. Fairbank Co., which construction can be exerted — nothing to
194 Fed. Rep. 978, may be considered as express¬ qualify or temper its words or effect. It is clear
ing power in the presiding judge to pass upon the in its permission and direction. It permits an affi¬
sufficiency of the facts affirmed. In Ex parte Glas¬ davit of personal bias or prejudice to be filed and
gow, 195 Fed. Rep. 780, the question came up upon its filing, if it be accompanied by certificate
upon an application for a writ of habeas corpus of counsel, directs an immediate cessation of
and it appeared that the affidavit of bias was not action by the judge whose bias or prejudice is
filed until after trial of the case and when the averred, and in his stead, the designation of
court was about to pass upon a motion in arrest another judge. And there is purpose in the con¬
of judgment and new trial. It was held that § 21 junction; its elements are complements of each
was not applicable at such stage of the proceed¬ other. The exclusion of one judge is emphasized
 A Fair Judge 97

by the requirement of the designation of another. and character, and the value of averments on
But it is said that there is modification of information and belief in the procedure of the law
the absolutism of the quoted declaration in the is recognized. To refuse their application to § 21
succeeding provision that the “affidavit shall state would be arbitrary and make its remedy una¬
the facts and the reasons for the belief” of the vailable in many, if not in most, cases. The section
existence of the bias or prejudice. It is urged that permits only the affidavit of a party, and Ex parte
the purpose of the requirement is to submit the American Steel Barrel Co., supra, decides, that
reality and sufficiency of the facts to the judgment it must be based upon facts antedating the trial,
of the judge and their support of the averment not those occurring during the trial. In the present
or belief of the affiant. It is in effect urged that case the information was a definite incident, and
the requirement can have no other purpose, that its time and place were given. Besides, it cannot
it is idle else, giving an automatism to the affidavit be the assumption of § 21 that the bias or prej¬
which overrides everything. But this is misunder¬ udice of a judge in a particular case would be
standing of the requirement. It has other and less known by everybody, and necessarily, therefore,
extensive use as pointed out by Judge Meek in to deny to a party the use of information received
Henry v. Speer, supra. It is a precaution against from others is to deny to him at times the benefit
abuse, removes the averments and belief from the of the section.
irresponsibility of unsupported opinion and adds We are of opinion, therefore, that an affi¬
to the certificate of counsel the supplementary aid davit upon information and belief satisfies the
of the penalties attached to perjury. Nor do we section and that upon its filing, if it show the
think that this view gives room for frivolous affi¬ objectionable inclination or disposition of the
davits. Of course the reasons and facts for the
judge, which we have said is an essential condi¬
belief the litigant entertains are an essential part
tion, it is his duty to “proceed no further” in the
of the affidavit, and must give fair support to the case. And in this there is no serious detriment to
charge of a bent of mind that may prevent or the administration of justice nor inconvenience
impede impartiality of judgment. The affidavit of worthy of mention, for of what concern is it to
defendants has that character. The facts and rea¬ a judge to preside in a particular case; of what
sons it states are not frivolous or fanciful but concern to other parties to have him so preside?
substantial and formidable and they have relation And any serious delay of trial is avoided by the
to the attitude of Judge Landis’ mind toward requirement that the affidavit must be filed not
defendants. less than ten days before the commencement of
It is, however, said that the assertion and the the term.
facts are stated on information and belief and that Our interpretation of § 21 has therefore no
hence the affidavit is wholly insufficient, § 21 deterring consequences, and we cannot relieve
requiring facts to be stated “and not merely from its imperative conditions upon a dread or
belief.” The contention is that “the court is prophecy that they may be abusively used. They
expected to act on the affidavit itself” and that, can only be so used by making a false affidavit;
therefore “the act of Congress requires facts — not and a charge of, and the penalties of, perjury
opinions, beliefs, rumors, or gossip.” Ex parte restrain from that — perjury in him who makes
American Steel Barrel Co., supra, is cited for the the affidavit, connivance therein of counsel
contention. We do not know what counsel means thereby subjecting him to disbarment. And upon
what inducement and for what achievement? No
by “opinions, beliefs, rumors, or gossip.” The
belief of a party the section makes of concern other than trying the case by one judge rather
and if opinion be nearer to or farther from per¬ than another, neither party nor counsel having
suasion than belief, both are of influence and voice or influence in the designation of that other;
universally regarded as of influence in the affairs and the section in its care permits but “one such
of men and determinative of their conduct, and
it is not strange that § 21 should so regard them. But if we concede, out of deference to judg¬
affidavit.”
We may concede that § 21 is not fulfilled by ments that we respect, a foundation for the dread,
the assertion of “rumors or gossip” but such dis¬ a possibility to the prophecy, we must conclude
paragement cannot be applied to the affidavit in Congress was aware of them and considered that
this case. Its statement has definite time and place there were countervailing benefits. At any rate we
JUSTICE AND THE LEGAL SYSTEM

can only deal with the act as it is expressed and aspects of the record, 1 venture to state the reasons
enforce it according to its expressions. Nor is it which impel me to reach a different conclusion
our function to approve or disapprove it; but we than that announced by the majority.
may say that its solicitude is that the tribunals of An examination shows that statutes exist in
the country shall not only be impartial in the a number of States covering the subject under
controversies submitted to them but shall give consideration. These statutes vary in character,
assurance that they are impartial, free, to use the and in the requirements for establishing the bias
words of the section, from any “bias or prejudice” or prejudice of the judge which may require him
that might disturb the normal course of impartial to abstain from sitting at the trial of a particular
judgment. And to accomplish this end the section case. In some of fhem an affidavit of belief of
withdraws from the presiding judge a decision prejudice, or that a fair trial cannot be had before
upon the truth of the matters alleged. Its explicit a particular judge, is sufficient to disqualify him.
declaration is that, upon the making and filing Other statutes require supporting affidavits and
of the affidavit, the judge against whom it is the certificate of counsel, and provide for a hear¬
directed “shall proceed no further therein, but ing on the matter of disqualification.
another judge shall be designated in the manner The federal statute, now under considera¬
prescribed in the section last preceding, or chosen tion, had its origin in an amendment to the Judi¬
in the manner prescribed in section twenty-three, cial Code, introduced in the House of
to hear such matter.” And the reason is easy to Representatives when the adoption of the Code
divine. To commit to the judge a decision upon was under consideration. As adopted in the
the truth of the facts gives chance for the evil House, the affidavit was required to set forth the
against which the section is directed. The remedy reasons for the belief that personal bias or prej¬
by appeal is inadequate. It comes after the trial udice existed against the party, or in favor of the
and, if prejudice exist, it has worked its evil and opposite party to the suit. . . .
a judgment of it in a reviewing tribunal is pre¬ When the bill came before the Senate the
carious. It goes there fortified by presumptions, section was amended so as to require the facts,
and nothing can be more elusive of estimate or and the reasons for the belief that bias or prejudice
decision than a disposition of a mind in which existed, to be set forth, and the affidavit is
there is a personal ingredient. required to be accompanied by a certificate of
After overruling the motion of defendants counsel of record that it and the application are
for his displacement. Judge Landis permitted to made in good faith. ... It is thus apparent that
be filed a stenographic report of the incident and the section in the form in which it finally became
language upon which the motion was based. We, part of the Judicial Code intended that the bias
however, have not discussed it because under our or prejudice which should disqualify a judge
interpretation of § 21 it is excluded from consid¬ should be personal against the objecting party,
eration. and that it should be established by an affidavit
We come then to the questions certified, and which should set forth the reasons and facts upon
to the first we answer. Yes, that is, that the affi¬ which the charge of bias or prejudice was based.
davit of prejudice is sufficient to invoke the oper¬ The evident purpose of this requirement was to
ation of the act. To the second we answer that, require a showing of such reasons and facts as
to the extent we have indicated. Judge Landis had should prevent imposition upon the court, and
a lawful right to pass upon the sufficiency of the establish the propriety of the affidavit of dis¬
affidavit. To the third we answer. No, that is, that qualification. “It is not sufficient,” said the late
Judge Landis had no lawful right or power to Mr. Justice Brewer, when a member of the
preside as judge on the trial of defendants upon Supreme Court of Kansas, in City of Emporia v.
the indictment. Volmer, 12 Kansas 627, “that a prima facie case
So ordered. only be shown, such a case as would require the
sustaining of a challenge to a juror. It must be
MR. JUSTICE DAY, dissenting. strong enough to overthrow the presumption in
As this case is to settle the practice for this favor of the trial-judge’s integrity, and of the
and similar cases which may arise in the federal clearness of his perception.”
courts, and as the opinion does not consider some 1 accept the opinion of the majority that the
 A Fair Judge 99

judge under the requirements of this statute may thing in it fairly establishing that the Judge
pass upon the sufficiency of the affidavit, subject directed his observations at the German people in
to a review of his decision by an appellate court, general, but rather that his remarks were aimed
and, if it be sufficient to show personal bias and at one convicted as was the defendant, of violation
prejudice, the judge should not try the case. But of law.
1 am unable to agree that in cases of the character As I understand the opinion of the court,
now under consideration the statement of the affi¬ notwithstanding the admissions of counsel, and
davit, however unfounded, must be accepted by the sworn stenographic report of what took place,
the judge as a sufficient reason for his disquali¬ the affidavit must be accepted, and, if it discloses
fication, leaving the vindication of the integrity matters, which if true, would tend to establish
and independence of the judge to the uncertainties bias and prejudice, the same must be given effect
and inadequacy of a prosecution for perjury and the judge be disqualified. It does not seem
should it appear that the affidavit contains known to me that this conclusion comports with the
misstatements. requirements of the statute that reasons and facts
Notwithstanding the filing of the affidavit must be set forth for the consideration of the
purporting compliance with the statute, the court judge. It places the federal courts at the mercy of
has a right to use all reasonable means to protect defendants who are willing to make affidavits as
itself from imposition. Davis v. Rivers, 49 Iowa to what took place at previous trials in the court,
435. The personal bias or prejudice of the judge which the knowledge of the judge, and the uncon¬
against the defendants in this case is said to be tradicted testimony of an official report may show
established by language imputed to the judge as to be untrue, and in many districts may greatly
his utterances concerning the attitude of the Ger¬ retard the trial of criminal causes.
man people during the progress of the war. While, as 1 have said, in sentencing Weis¬
The affidavit filed contained a statement of sensel the Judge might have been more temperate
alleged language of the judge, concerning a Ger¬ in his observations, I am unable to find that the
man who was “charged” with making the state¬ statements of the affidavit, when read in connec¬
ments set forth. Counsel in open court admitted tion with the admissions of counsel and the estab¬
that the offending language was used in passing lished facts as to what took place as gathered from
sentence after conviction in Weissensel’s case. the stenographic report, showed such evidence of
Moreover, upon the affidavit being filed, and personal bias or prejudice against the defendants
after this admission of counsel, the District Attor¬ as required the Judge upon the mere filing of this
ney offered in evidence a transcript of what took affidavit to permit its misleading statements to be
place and what was in fact said upon the sen¬ placed of record, and to proceed no further with
tencing of Weissensel. the case.
This stenographic report, sent up with the It does not appear that the trial judge had
certificate and made part of it, and which there any acquaintance with any of the defendants, only
is no reason to believe fails to state accurately one of whom was of German birth, or that he
what took place, is in marked contrast with state¬ had any such bias or prejudice against any of them
ments of the affidavit which the defendants made as would prevent him from fairly and impartially
when seeking the disqualification of the Judge. conducting the trial. To permit an ex parte affi¬
The Judge in speaking of the convicted defendant davit to become in effect a final adjudication of
said that he was of the type of man who branded the disqualification of a judge when facts are
almost the whole German-American population, shown, such as are here established, seems to me
and that one German-American, such as the to be fraught with much danger to the independ¬
defendant, talking such stuff did more damage to ent discharge of duties by federal judges, and to
his people than thousands of them could overcome open a door to the abuse of the privilege which
by being good and loyal citizens; and that he, the is intended to be conferred by the statute in ques¬
defendant, was an illustration of the occasional tion. . . .
American of German birth whose conduct had
MR. JUSTICE PITNEY concurs in this dis¬
done so much to damn the whole ten million in
sent.
America. While this language might have been
more temperate, there does not appear to be any¬ MR. JUSTICE MCREYNOLDS, dissenting.
100 JUSTICE AND THE LEGAL SYSTEM

I am unable to follow the reasoning of the notoriously encouraged by many of its natives
opinion approved by the majority or to feel fairly who, unhappily, had obtained citizenship here.
certain of its scope and consequence. If an admit¬ The words attributed to the judge (I do not credit
ted anarchist charged with murder should affirm
the affidavit’s accuracy) may be fairly construed
an existing prejudice against himself and specify as showing only deep detestation for all persons
that the judge had made certain depreciatory of German extraction who were at that time wick¬
remarks concerning all anarchists, what would be
edly abusing privileges granted by our indulgent
the result? Suppose official stenographic notes or laws.
other clear evidence should demonstrate the falsity Of course, no judge should preside if he
of an affidavit, would it be necessary for the judge entertains actual personal prejudice towards any
to retire? And what should be done if dreams or
party and to this obvious disqualification Con¬
visions were the basis of an alleged belief?
gress added honestly entertained belief of such
The conclusion announced gives effect to the
prejudice when based upon fairly adequate facts
statute which seems unwarranted by its terms and
and circumstances. Intense dislike of a class does
beyond the probable intent of Congress. Bias and
not render the judge incapable of administering
prejudice are synonymous words and denote “an
complete justice to one of its members. A public
opinion or leaning adverse to anything without
officer who entertained no aversion towards dis¬
just grounds or before sufficient knowledge”— a loyal German immigrants during the late war was
state of mind. The statute relates only to adverse
opinion or leaning towards an individual and has simply unfit for his place. And while “An over¬
no application to the appraisement of a class, e.g., speaking judge is no well tuned cymbal” neither
revolutionists, assassins, traitors. is an amorphous dummy unspotted by human
To claim personal bias without more is insuf¬ emotions a becoming receptacle for judicial
power. It was not the purpose of Congress to
ficient; “the facts and the reasons for the belief
empower an unscrupulous defendant seeking
that such bias or prejudice exists” must be set
out, and plainly, I think, this must be done in escape from merited punishment to remove a
order that the judge or any reviewing tribunal may judge solely because he had emphatically con¬
determine whether they suffice to support honest demned domestic enemies in time of national dan¬
belief in the disqualifying state of mind. ger. The personal concern of the judge in matters
Defendants’ affidavit discloses no adequate of this kind is indeed small, but the concern of
ground for believing that personal feeling existed the public is very great.
against any one of them. The indicated prejudice In my view the trial judge committed no
was towards certain malevolents from Germany, error when he considered the affidavit, held it
a country then engaged in hunnish warfare and insufficient, and refused to retire.

Notes and Questions

1. Do the dissenting judges differ between themselves whether Judge Landis showed
bias toward German-Americans as a class? Do they agree that Judge Landis showed no
personal bias toward the defendants in Bergerl
2. In his dissent Justice Day argues that any bias Judge Landis’ statements may have
shown was not personal bias against Berger, since the statements had been made in sentencing
Weissensel, who had already been tried and convicted of violating the Espionage Act. Justice
McReynolds states in his dissent:
The statute [Section 21 of the Judicial Code, now 28 U.S.C. 144] relates only to adverse
opinion or leaning towards an individual and has no application to the appraisement of a
class, e.g., revolutionists, assassins, traitors.

One possible meaning of “bias” is treating a person as a member of a disfavored class

 A Fair Judge 101

rather than as an individual with merits and demerits having nothing to do with the class.
Do the dissenting justices exclude this sort of bias from coverage under the statute? Justice
McReynolds insists that the “bias” forbidden by the statute is “personal bias”: it “relates
only to adverse opinion or leaning towards an individual.” Do you agree?
3. Justice McReynolds also states: “Intense dislike of a class does not render the judge
incapable of administering complete justice to one of its members.” Does it not matter
exactly why the judge “dislikes” the class? Is it obvious what it means for an individual
to be a “member” of a class? Shouldn’t we want to know the purpose of the litigation?
4. Judge Landis was, in the words of the dissent, “an overspeaking judge.” He said
what was on his mind; he was ingenuous. Suppose he had kept his opinions to himself —
he still would have been just as biased as the Supreme Court said he was. But now, as the
result of the Berger decision, judges will learn not to say what is on their mind. Won’t that
drive bias and prejudice underground? Judges will be as biased as they ever were; they just
won’t admit it. Is that a desirable outcome of the Berger litigation? What else can the
judicial system do to protect against judicial bias?
5. Perhaps Judge Landis was not biased against one class, but rather against the
intersection of two classes: (1) Germans in the United States, and (2) persons disloyal to

the United States. The defendants certainly fit into (1); but did they fit into (2)? Wouldn’t
the answer to that question depend on how the facts came out at the trial? If so, can we
say that Judge Landis was not biased at all? Consider the following questions:

A. Suppose a judge announces at the beginning of a criminal case: “I hereby

disclose my total and complete prejudice against Chicanos who deal in cocaine and
crack, because Latin America is growing the stuff and shipping it here and destroying
the lives of our youth in the process.” Suppose that the trial is against a defendant
who is a Chicano accused of selling cocaine. Should the judge be dismissed from the
case on the authority of Bergerl What prejudice does the judge show against the
defendant? Can’t the judge say that if the defendant turns out to be innocent, he then
is not a Chicano who deals in cocaine, and hence is not the object of the judge’s
prejudice? Can’t the judge say further that all judges should be prejudiced against
guilty cocaine dealers?
B. Same hypothetical as in the previous question. Can we argue that the judge is
predisposed toward finding this defendant guilty because the judge wants to “send a
message” to the Chicano community to stay away from dealing in cocaine? If the
judge wants to “send messages,” can such a judge be fair toward this defendant? Is
this a case where bias against a class boils down to a presumption against a particular
member of that class?

6. Imagine a white racist judge presiding over a court in Mississippi in the 1930s. Should
that judge be barred from hearing either of the following cases (each involving alleged
negligence on the part of the defendant causing injury to the plaintiff)?

A. A black plaintiff sues a black defendant.

B. A white plaintiff sues a white defendant.
102 JUSTICE AND THE LEGAL SYSTEM

Theories of Judging and Judge Disqualification’^

John Leubsdorf

The list of disqualifying factors has expanded since the eighteenth century,
when finan¬
cial interest was the sole ground for recusal. Legislation played an
important part in this
evolution. Congress has supplemented its original disqualification statute
of 1792 five times,
in each instance expanding the scope of disqualification. The Supreme Court
has read the
Constitution to forbid decision makers to hear cases when they have a
personal stake in
the result, become personally embroiled with a party, or were involved in the
litigated
incidents. The organized bar has similarly expanded its standards.
Except for Chief Justice Rehnquist, every commentator who has critically analyzed
disqualification in the federal courts has supported its expansion. The 1974 disqualification
legislation did not end this trend; commentators continue to seek further enlargements,
often supporting automatic disqualification when a party files a conclusory affidavit of
bias.

The obvious explanation for these developments is a shift in society’s view of judicial
psychology, and of psychology in general: from the eighteenth century’s economic man,
susceptible only to the tug of financial interest, to today’s Freudian person, awash in a sea
of conscious and unconscious motives. Alternatively, one might view the law as developing
out of a paradigm of disqualification when a judge is “judge in his own case” — a dis¬
qualification perhaps grounded less on the likelihood of impartial decision than on the
inconsistency between the roles of judge and party. Today, disqualification law is clearly
directed at the likelihood of warped judgment, with a judge’s financial or familial stake in
the case as just one circumstance from which to infer such a likelihood.
However, it is an oversimplification to conclude that a growing belief in the influence
of emotional and unconscious drives led to more judicial disqualification. After alt, the
eighteenth century also disqualified witnesses for interest, yet later generations have aban¬
doned rather than expanded this practice. Freud or no Freud, no one today proposes to
disqualify congressmen from voting or scientific researchers from researching because of
their emotions. On the other hand, eighteenth-century lawyers and judges knew that motives
other than financial or personal interest could warp judgment. They often disqualified
jurors under circumstances that created a suspicion of partiality, such as belonging to the
same society as a party or opposing a party in an unrelated suit. Joseph Chitty (not a
pioneer of psychology) mentioned long before Freud that jurors could be “unconsciously”
influenced. Bentham reminded lawyers that nonfinancial motives can sway judges, but he
did not discover that truth. Indeed, the Talmud had recognized the precariousness of impar¬
tiality when it said: “Every judge who judges a case with complete fairness even for a single
hour is credited by the Torah as though he had become a partner to the Holy One, Blessed

Be He, in the work of creation.”

’7 62 N.Y.U.L. Rev. 237, 246-50 (1987).

 A Fair Judge 103

Increasing doubts that correct answers exist for legal questions underlie the growth of
disqualification. Barbara Shapiro relates the seventeenth century’s concern for judicial impar¬
tiality, as shown in efforts to make judicial tenure more secure, to that period’s doubts
about the availability of unquestionable knowledge. For a long time, lawyers and judges
were able to limit these doubts or believed that they could preserve credibility by hiding
them from the public and suppressing public criticism. However, as reaching an objectively
correct legal decision came to seem a more Herculean task, people went to greater lengths
to prevent extraneous motives from inhibiting the delicate feat.
An increased sense of the role of policy in adjudication may also have spotlighted
disqualification problems. Martin Shapiro and Owen Fiss have suggested that the root
concept of traditional litigation is the selection by two disputants of a third person to resolve
their dispute. The disputants, presumably, would choose an arbiter who had never com¬
mented on the matters in dispute, was unaligned with either party, and embodied a system
of values to which they both adhered. A judge might well meet these requirements; if so,
courts adjudication would be much like arbitration. But over the years it has become clearer
that judges do not simply resolve private disputes, but also shape and enforce governmental
policy. That gives litigants more reason to distrust even a judge with no stake in the result.
It also gives the government and citizens more reason to ensure that its judges will enforce
rather than undermine the correct policies.
Although these developments have made people more concerned about disqualification,
they have also threatened to undermine any disqualification rules. If unconscious motives
sway everyone, how can one find a judge who is free of them? If only Hercules can find
the correct result — or if there is no correct result — how can we say that one judge is better
suited to decide a case than another? If judges are molders of policy, why should anyone

promote a judicial ideal that is more than an array of the promoter’s own preferred policies?
As Kenneth Davis has said, “Almost any intelligent person will initially assert that he wants
objectivity, but by that he means biases that coincide with his own biases.’’
Judge Jerome Frank wrestled with these questions at a deeper level than any of his
contemporaries who wrote about disqualification. The decision in In re Linahan did not
call for much agony, because the only evidence of bias presented was that a Master, after
hearing the evidence, had ruled against one party, and that some of those rulings were
reversed on appeal. But the case must have challenged Judge Frank to show that, as a
judge, he could acknowledge and yet confine his earlier assertions that the judge’s personality
shapes judicial decisions more than impersonal law.
He posed the problem squarely.
104 JUSTICE AND THE LEGAL SYSTEM

In re J.P. Linahan

138 F.2d 650

Circuit Court of Appeals, Second Circuit
Nov. 8, 1943

FRANK, Circuit Judge. live is to have a vocation, and to have a vocation

is to have an ethics or scheme of values, and to
Appellants complain that the District Court,
have a scheme of values is to have a point of view,
having appointed Referee Olney as Special Master
and to have a point of view is to have a prejudice
in Chapter X proceeding begun by involuntary
or bias * * *”’® An “open mind,” in the sense
petition and contested by appellants, denied
of a mind containing no preconceptions whatever,
appellants’ application to remove that Special would be a mind incapable of learning anything,
Master because of bias. Appellants point to mat¬
would be that of an utterly emotionless human
ters alleged to show such bias, most of which are
so frivolous as to deserve no discussion. Special being, corresponding roughly to the psychiatrist’s
descriptions of the feeble-minded. More directly
emphasis is put on these facts: The Master has
to the point, every human society has a multitude
heretofore entered orders, accompanied by find¬
of established attitudes, unquestioned postulates.
ings adverse to appellants; the District Court’s
Cosmically, they may seem parochial prejudices,
orders, approving these orders of the Master,
were, in some instances, reversed by this court on but many of them represent the community’s most
cherished values and ideals. Such social pre¬
previous appeals; some of the findings of the Spe¬
cial Master are alleged to have been, at least by conceptions, the “value judgments” which mem¬
bers of any given society take for granted and use
inference, disapproved on these appeals and, in
as the unspoken axioms of thinking, find their
one instance, to have been based on hearsay.
These facts do not call for removal of the Special way into that society’s legal system, become what
Master. Appellants entertain a fundamentally has been termed “the valuation system of the
false notion conception [sic] of the prejudice law.” The judge in our society owes a duty to act
in accordance with those basic predilections inher¬
which disqualifies a judicial officer.
ing in our legal system (although, of course, he
Democracy must, indeed, fail unless our
courts try cases fairly, and there can be no fair has the right, at times, to urge that some of them
trial before a judge lacking in impartiality and be modified or abandoned). The standard of dis¬
passionateness obviously does not require the
disinterestedness. If, however, “bias” and “par¬ judge to rid himself of the unconscious influence
tiality” be defined to mean the total absence of
preconceptions in the mind of the judge, then no of such social attitudes.”
one has ever had a fair trial and no one ever will. In addition to those acquired social value
The human mind, even at infancy, is no blank judgments, every judge, however, unavoidably has
piece of paper. We are born with predispositions; many idiosyncratic “leanings of the mind,”
and the process of education, formal and infor¬
mal, creates attitudes in all men which affect them
in judging situations, attitudes which precede rea¬
’8 Kenneth Burke, Permanence and Change
soning in particular instances and which therefore,
329 (1936).
by definition, are prejudices. Without acquired
A word of caution is needed here. These social
“slants,” preconceptions, life could not go on.
value judgments are often said to be a product of the
Every habit constitutes a prejudgment; were those
“spirit of the times.” One may doubt, however, whether,
prejudgments which we call habits absent in any
in any period, there is a single time spirit or, to use a
person, were he obliged to treat every event as an
common phrase, a single “climate of opinion.” The
unprecedented crisis presenting a wholly new
“time spirit” is often differently interpreted by different
problem he would go mad. Interests, points of
judges: “In every court there are likely to be as many
view, preferences, are the essence of living. Only estimates of the ‘Zeitgeist’ as there are judges on its
death yields complete dispassionateness, for such bench.” Cardozo, The Nature of The Judicial Proc¬
ess 174 (1920).
dispassionateness signifies utter indifference. “To
 A Fair Judge 105

uniquely personal prejudices, which may interfere of the human element in the judicial process
with his fairness at a trial. He may be stimulated allows that element to operate in an exaggerated
by unconscious sympathies for, or antipathies to, manner; the sunlight of awareness has an anti¬
some of the witnesses, lawyers or parties in a case septic effect on prejudices. Freely avowing that he
is a human being, the judge can and should,
before him. As Josiah Royce observed, “Oddities through self-scrutiny, prevent the operation of this
of feature or of complexion, slight physical var¬ class of biases.^® This self-knowledge is needed
iations from the customary, a strange dress, a scar,
a too-steady look, a limp, a loud or deep voice,
any of these peculiarities . . . may be, to one, an assumes the ermine he does not divest himself ol human¬
object of fascinated curiosity; to another ... an ity. He has sworn to do justice to all men without fear
intense irritation, an object of violent antipa¬ or favour, but the impartiality which is the noble hall¬

thy.”^® In Ex parte Chase, 43 Ala. 303, Judge mark of our Bench does not imply that the judge’s mind
has become a mere machine to turn out decrees; the
Peters said he had “known a popular judicial judge’s mind remains a human instrument working as
officer grow quite angry with a suitor in his court, do other minds, though no doubt on specialized lines
and threaten him with imprisonment, for no and often characterized by individual traits of person¬
ostensible reason, save the fact, that he wore an ality, engaging or the reverse.” Lord Macmillan, Law
AND Other Things 202 (1937).
overcoat made of wolf skins,” and spoke of “prej¬
udice, which may be swayed and controlled by
the tria jud i B v U S 2 U 2
the merest trifles — such as the toothache, the l ge n erger . nited tates, 55 .S. 2,
if he had said not that he as irtw v i nca of
, uall pab
rheumatism, the gout, or a fit of indigestion, or bei f t G Ame citi y dur l
Weor
ng air o erma ri ze ing ld
3
even through the very means by which indigestion War 1, but that he nwas awa can of his npsrej agai
re udi nst
the and cou t dis it. ce
m ld herefo cou
is frequently sought to be avoided.” “Trifles,” he re nt
The unrecognized, unspoken, bias is dangerous.
added, “however ridiculous, cease to be trifles Darwin said that he found it so easy to pass over cases
when they may interfere with a safe administration
opposed to his favorite generalizations that he made it
of the law.” Frankly to recognize the existence of a habit to jot down every exception which he observed
such prejudices is the part of wisdom. The con¬ or thought of, as otherwise he would be almost sure to
scientious judge will, as far as possible, make forget it. It is difficult to agree with Rohrlich (17 Am.
The Bar Assn. J. 481) that it is wise for judges to suppress
himself aware of his biases of this character, and, re
wothe
uldexpression of certain factors in the process of deci-
by that very self-knowledge, nullify their effect.^’ hav
e b that such suppression tends “to reduce the
sion-rjiaking,
een
Much harm is done by the myth that, merely no factors.”
influence of those dis
qua
What Herbert Spencer
by putting on a black robe and taking the oath lif said as to more general pre¬
ica
tio
of office as a judge, a man ceases to be human conceptions has a bearing here: n o“The
f only reasonable
hope is, that here and there one may be led, in calmer
and strips himself of all predilections, becomes a moments to remember how largely his beliefs about
passionless thinking machine. The concealment public matters have been made for him by circumstances,
and how probable it is that they are either untrue or
but partially true. When he reflects on the doubtfulness

20 Royce, Race Questions, Provincialism and of the evidence which he generalizes, collected hap-haz-
ard from a narrow area — when he counts up the per¬
Other American Problems 47-52 (1908).
verting sentiments fostered in him by education,
21 One of the subtlest tendencies which a consci¬
country, class, party, creed — when, observing those
entious judge must learn to overcome is that of “leaning around, he sees that from other evidence selected to
over backwards” in favor of persons against whom his gratify sentiments partially unlike his own, there result
prejudices incline him. Pascal wrote of some men who unlike views; he may occasionally recollect how largely
have been unjust in their efforts to exclude bias: “The mere accidents have determined his convictions. Rec¬
sure way of losing a just cause is to get it recommended ollecting this, he may be induced to hold these convic¬
to these men by their near relatives.” Pascal, Pensees, tions not quite so strongly; may see the need for criticism
No. 82. of them with a view to revision; and, above all, may
22 “The judicial mind is subject to the laws of be somewhat less eager to act in pursuance of them.”
psychology like any other mind. When the judge Spencer, Study of Sociology 356-357 (1873).
106 JUSTICE AND THE LEGAL SYSTEM

in a judge because he is peculiarly exposed to has an official obligation to become prejudiced in

emotional influences; the “court room is a place that sense. Impartiality is not gullibility. Disin¬
of surging emotions ... the parties are keyed up terestedness does not mean child-like innocence.
to the contest, often in open defiance; and the
If the judge did not form judgments of the actors
topics at issue are often calculated to stir up the
in those court-house dramas called trials, he could
sympathy, prejudice, or ridicule of the tribunal.”^^ never render decisions.
The judge’s decision turns, often, on what he
believes to be the facts of the case. As a fact¬ His findings of fact may be erroneous, for,
finder, he is himself a witness— a witness of the being human, he is not infallible; indeed, a judge
witnesses; he should, therefore, learn to avoid the who purports to be superhuman is likely to be
errors which, because of prejudice, often affect
dominated by improper prejudices. When upper
those witnesses.
court judges on an appeal decide that the findings
But, just because his fact-finding is based
of a trial judge are at fault because they — correctly
on his estimates of the witnesses, of their relia¬
bility as reporters of what they saw and heard, it or incorrectly— ”think those findings insuffi¬
is his duty, while listening to and watching them, ciently supported by relevant and competent evi¬
to form attitudes towards them. He must do his dence, that appellate decision does not brand him
best to ascertain their motives, their biases, their as partial and unfair. When, his decision reversed
dominating passions and interests, for only so can because of errors in his findings of fact or con¬
he judge of the accuracy of their narrations. He clusions of law, the case comes back to his court
must also shrewdly observe the stratagems of the for a further hearing, he will not, if he is the kind
opposing lawyers, perceive their efforts to sway of person entitled to hold office as a judge, permit
him by appeals to his predilections.^’ He must his previous decision in the case control him.
cannily penetrate through the surface of their
These comments dispose of the issue here.
remarks to their real purposes and motives.^’ He
Referee Olney has honorably discharged the duties
of his office for many years. Nothing in his official
WiGMORE, Principles of Judicial Proof 960 career or in the record of this case justifies the
(2d ed. 1931). suggestion that he did not and will not conform
25 It will repay any judge to re-read carefully Aris¬ to the judicial standards of fairness as we have
totle’s Rhetoric, which, in large part, is a manual on defined them. Judge Coxe, one of our ablest and
how to win a law suit, telling in detail the numerous
most experienced trial judges, has refused to
ways to appeal to a judge’s prejudices.
It is not without interest that one of the much- remove Referee Olney as Master in these pro¬
quoted statements in the Rhetoric on “natural” or “uni¬ ceedings. We see nothing to warrant us in inter¬
versal” law is contained in a passage in which Aristotle fering with Judge Coxe’s discretion. Indeed, had
advises that, if the written law is against a litigant, he he ruled otherwise, we would have been strongly
should urge that the case is governed by unwritten “uni¬ inclined to reverse him.
versal law,” but that, if the written law is in his favor, Affirmed.
he should dwell on the dangers of resorting to such
unwritten principles. See Aristotle, Rhetoric, Book
I, Chapter 15.
25 Some lawyers are seductively persuasive, recal¬
ling Plutarch’s report of a remark of a contemporary
about Pericles: “Whenever I throw him in wrestling, he
disputes the fall, and carries his point, and persuades 22 Judicially, they are deemed to be correct. In fact,
being human, they too may err.
the very men who saw him fall.”
 A Fair Judge 107

Notes and Questions

1. To what extent can we account for the difference in result in Berger and Linahan
by the fact that in Berger the judge’s prejudicial statements were made before trial whereas
in Linahan the prejudice came out during the proceedings?

2. Is Justice McReynolds in his dissent to Berger simply prefiguring Judge Frank’s

model of the judicial temperament in Linahan: awareness of one’s prejudices and prepar¬
edness to act contrary to them? Do you believe that some people, at least, possess such an
ability to overcome their own known prejudices?
3. In Note 21 to his opinion in Linahan [Note 6 in the original] Judge Frank describes
a tendency in some people to decide opposite to their inclinations to prove to themselves
and the world either that they do not have the inclination or that they are able to act
contrary to it. We have some famous examples of Supreme Court justices — Frankfurter,
Warren — who confounded the expectations of their political sponsors once they started work
on the bench. Can we ever tell whether a judge is setting aside a bias or acting in accordance
with Judge Frank’s phenomenon? Can we decide such a question about ourselves?
4. Does the following assertion go too far? “The very deepest prejudices we have do
not seem like prejudices to us; we call them facts.’’
5. Comment upon the following assertion: “Faith is what we know on the basis of
evidence we have not seen.’’
6. Judge Frank said that the trial judge must observe witnesses at a trial very closely,
for it is his duty “to form attitudes toward them. He must do his best to ascertain their
motives, their biases, their dominating passions and interests, for only so can he judge of
the accuracy of their narrations.’’ Do you agree? Is it possible for a judge to “ascertain’’
“motives’’? Assuming it is, what is more likely — that the judge will accurately ascertain
such motives or inaccurately do so? When engaging in something as elusive as the ascer¬
tainment of the motives of other persons, is there not room for prejudice and bias to creep
in?
7. May a judge go outside the trial to ascertain the motives and biases of witnesses?
May he discuss the case with other judges? With attorneys at the local bar association?
Should he inquire in his community as to the motives and biases of witnesses who are
appearing or will appear in trials that he is conducting? Suppose his son goes to the same
school as the daughter of a witness in a trial; should he ask his son to ask the witness’s
daughter certain things about her father, his friends, his habits, or his beliefs?
Except for consulting with other judges (which is expressly allowed by the Code of
Judicial Conduct of the American Bar Association), any such deliberate forays by a judge
outside of the trial itself would be considered improper under the standards of judicial
ethics. In Price Brothers Co. v. Philadelphia Gear Corp., 629 F.2d 444 (6th Cir. 1980), it
was alleged that the trial judge sent his law clerk to view the subject matter of the litigation.

The Sixth Circuit held that this was so potentially “destructive of the appearance of impar¬
tiality’’ that the case was remanded for a hearing on the truth of the allegation.
8. Some litigations are huge and extend over many years. One of the biggest of these

was the government’s antitrust case against IBM, in which the trial judge heard 10,000
108 JUSTICE AND THE LEGAL SYSTEM

motions! IBM claimed that the judge was biased because he ruled
against them on 86%
of the 10,000 motions. The appellate court held that adverse rulings
alone do not create
the appearance of partiality. In re International Business Machines Corp.,
618 F.2d 923,
929 (2d Cir. 1980) ( A trial judge must be free to make rulings on the merits
without the
apprehension that if he makes a disproportionate number in favor of one
litigant, he may
have created the impression of bias.”) Do you agree?
9. What light does Judge Frank’s account of judging in Linahan shed on the model
of judging implicit in legal realism? Should we be concerned not with judicial bias, but
with the degree of judicial bias? If so, how could it be measured?

Federal Statutes on Judicial Bias

28 U.S.C. § 144

[We encountered the precursor to this statute in the Berger case. It disqualifies district
court judges for personal bias or prejudice as alleged in a party’s affidavit.]

28 U.S.C. § 455

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or
a lawyer with whom he previously practiced law served during such association as a
lawyer concerning the matter, or the judge or such lawyer has been a material witness
concerning it;
(3) Where he has served in governmental employment and in such capacity par¬
ticipated as counsel, adviser or material witness concerning the proceeding or expressed
an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child
residing in his household, has a financial interest in the subject matter in controversy
or in a party to the proceeding, or any other interest that could be substantially affected
by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either
of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
 A Fair Judge 109

(c) A judge should inform himself about his personal and fiduciary financial interests,
and make a reasonable effort to inform himself about the personal financial interests of
his spouse and minor children residing in his household.
(d) For the purposes of this section the following words or phrases shall have the
meaning indicated:

(1) “proceeding” includes pretrial, trial, appellate review, or other stages of liti¬
gation;
(2) the degree of relationship is calculated according to the civil law system;
(3) “fiduciary” includes such relationships as executor, administrator, trustee, and
guardian;
(4) “financial interest” means ownership of a legal or equitable interest, however
small, or a relationship as director, adviser, or other active participant in the affairs
of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities
is not a “financial interest” in such securities unless the judge participates in the
management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organ¬
ization is not a “financial interest” in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company,
of a depositor in a mutual savings association, or a similar proprietary interest,
is a “financial interest” in the organization only if the outcome of the proceeding
could substantially affect the value of the interest;

(iv) Ownership of government securities is a “financial interest” in the issuer

only if the outcome of the proceeding could substantially affect the value of the
securities.

(e) No justice, judge, or magistrate shall accept from the parties to the proceeding a
waiver of any ground for disqualification enumerated in subsection (b). Where the ground
for disqualification arises only under subsection (a), waiver may be accepted provided it is
preceded by a full disclosure on the record of the basis for disqualification.
(f) Notwithstanding the preceding provisions of this section, if any justice, judge,
magistrate, or bankruptcy judge to whom a matter has been assigned would be disqualified,
after substantial judicial time has been devoted to the matter, because of the appearance
or discovery, after the matter was assigned to him or her, that he or she individually or as
a fiduciary, or his or her spouse or minor child residing in his or her household, has a
financial interest in a party (other than an interest that could be substantially affected by
the outcome), disqualification is not required if the justice, judge, magistrate, bankruptcy
judge, spouse or minor child, as the case may be, divests himself or herself of the interest
that provides the grounds for the disqualification.
no JUSTICE AND THE LEGAL SYSTEM

Notes and Questions

1. The versions of Sections 144 and 455 in force when Berger

and Linahan were decided
were enacted by Congress as Sections 21 and 20 respec
tively of the Act of March 3, 1911,
C.231, 36 Stat. 1090. Both sections then applied only to district court judges.
Section 20
(now 28 U.S.C. § 455) was revised in 1948 to be applic
able to all justices and judges of
the United States.^" Section 21 (now 28 U.S.C. § 144)
court judges. is still applicable only to district

The version of Section 455 in force at the time of Berger and

Linahan read somewhat
differently than the current version:

Sec. 20. Whenever it appears that the judge of any district court
is in any way concerned
in interest in any suit pending therein, or has been of counsel or is a
material witness for
either party, or is so related to or connected with either party as to
render it improper, in
this opinion, for him to sit on the trial, it shall be his duty, on applica
tion by either party,
to cause the fact to be entered on the records of the court; and also
an order that an
authenticated copy thereof shall be forthwith certified to the senior circuit
judge for said
circuit then present in the circuit; and thereupon such proceedings shall be
had as are
provided in section fourteen [permitting the designation by a circuit judge of
a district judge
from any other district in the same circuit^’].

The 1948 broadening

of Section 455 to apply to all judges, also eliminated the application
procedure found in the original statute, stating only that the justice or judge “shall disqualify
himself. The current, substantively expanded version arose in a major amendment to
Section 455 in 1974.®’ To the relatively narrow grounds for recusal contemplated in the pre-
1974 version of the statute, the amended statute added notions of “impartiality” and
“personal bias or prejudice.”
2. Section 455 asks a judge to recuse herself for any of several listed conditions. Some
of the conditions are clearly objective, such as having a spouse who is a party to the
litigation. Some are objective in form only, such as, “in which his impartiality might
reasonably be questioned.” Others are subjective, such as a judge becoming aware (whether
others are aware or not) that she has a “personal bias” against a party. Is it realistic to
expect a judge to recognize conditions that are either subjective or are objective in form
only? Is it realistic to expect appellate judges to review a trial judge’s response to a motion
for recusal based upon subjective factors?
3. Should we be more careful about financial interests and blood relationships because
we find them easier to identify than other interests and relationships? Because we think
they are more potent? Or, should we be less careful about them?

28 June 25, 1948, c.646, § 1, 62 Stat. 908.

2’ Section 21 provided for designation of another judge within the same district. Why the difference?
80 “Any Justice or judge of the United States shall disqualify himself in any case in which he has a substantial
interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party
or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding

therein.”
3’ Pub. L. No. 93-512, § 1, 88 Stat. 1609 (Dec. 5, 1974).
 A Fair Judge 111

4. In United States v. Will, 449 U.S. 200 (1980), the Supreme Court considered a
challenge to Congress’ power to repeal or modify a statutorily defined formula for annual
cost-of-living increases in the salary of federal judges. Even the justices who ruled on this
case had a direct personal financial interest in the outcome! The Court found a way around
the ethical requirement — the “rule of necessity.” This court-made rule states that no judge
is required to disqualify himself if the basis for the disqualification would require every
judge to disqualify himself. Can you see why this “rule of necessity” would be relevant to
interpreting Section 455? The Court held that Section 455 was designed to guarantee litigants
a fair forum in which to pursue their claims. The “rule of necessity” thus makes it possible
for all litigants to have a forum.
5. Is our judicial system biased in favor of capitalism? If so, is it a matter for concern?
(Consider these questions when you read the next case and the “60 Minutes” excerpt below.)
Is there a difference between a judge’s bias and widely held beliefs about social policy?
What if society is torn on an issue of policy? What if a judge considers widely held beliefs
to be evil? (We will take up these questions in Section 4.)

3.3 Judicial bias: Applications

United States v. Fiat Motors

Background IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
On January 4, 1980, the Government charged
Fiat with violating the National Traffic and Motor THE UNITED STATES OF
AMERICA
Vehicle Safety Act. 15 U.S.C. §§ 1381, et seq. The Plaintiff,
complaint charged Fiat with failing to remedy
Civil Action No.
safety defects on several models of its motor vehi¬
80-25
cles. The Government alleged that certain desig¬ FIAT MOTORS OF
nated Fiat models were subject to severe rust and NORTH AMERICA, INC.,
corrosion of critical undercarriage components, Defendant
which in turn affected their operational safety,
more particularly the problem of control or lack Washington, D.C. Friday, April 3, 1981
of control of the motor vehicle. On the same day
The above-captioned action came on for
that the complaint was filed, the National High¬ motion for disqualification of trial judge before
way Traffic Safety Administration issued a final the Honorable BARRINGTON D. PARKER,
order requiring Fiat to recall those vehicles. In United States District Court Judge, in Courtroom
this proceeding the Government sought enforce¬
ment of that recall order. . . . 19, commencing at approximately 9:20 o’clock
a.m.
Nearly fourteen months after the Govern¬
APPEARANCES:
ment brought this suit, Fiat filed a motion seeking
the disqualification of Judge Barrington D. For the Plaintiff:
Parker from further presiding over the matter, or, SURELL BRADY, ESQ.
alternatively, that he exercise his discretion and Department of Justice, Room 3535
transfer the matter to the Calendar Committee for 10th Street and Constitution Avenue, NW.
reassignment to another judge. Washington, D.C. 20530
112 JUSTICE AND THE LEGAL SYSTEM

ROBERT NESLER, ESQ. trary — they all suggest that everything is venti¬
Department of Justice, Room 3334 lated on the record in open court.
10th Street and Constitution Avenue, NW. Can you point to any situation where a so-
Washington, D.C. 20530 called sensitive matter relating to a judge’s dis¬
DAVID ALLEN, ESQ. qualification or recusal is held in chambers?
Department of Transportation MR. KORNS. Your Honor, we were not urging
National Highway Safety Administration this. Truly we were not urging the matter. We
400 Seventh Street, SW. simply were pointing out if the Court wanted to
Washington, D.C. 20590 do so, we had no objection and, in fact, the papers
For the Defendant: in the Branson case, if I recall, or the transcript —
I don’t recall now which — the U.S. Attorney made
JOHN H. KORNS, ESQ. the identical suggestion that if the Court wished,
HARRY W. CLADOUHOS, ESQ.
he would be happy to have the hearing in cham¬
PAUL M. LAURENZA, ESQ. bers.
Cladouhos & Brashares
1750 New York Avenue, NW. THE COURT. Counsel, the situation in the Bran¬
son case, since you bring it up, is remarkably in
Washington, D.C. 20006
contrast and different from this.
THE COURT. Mr. Korns, you may proceed, sir. MR. KORNS. If the Court feels so, that is fine.
I may say that I received the letter of counsel Your Honor. We were not urging the matter, and
for Fiat in which they suggested that this matter we are not urging the matter —
be held in chambers. I felt it was a rather curious
THE COURT. I will tell you quite frankly I was
observation and request, and you may if you want
surprised. I wasn’t annoyed at all, but I was just
to — you can address that, too, Mr. Korns. curious as to just what was the thinking of your
Of course, I have made the decision. The
sending such a letter.
decision is I would hear it in open court. You have explained it. You may proceed with
MR. KORNS. Certainly, Your Honor. your argument.
ORAL ARGUMENT ON BEHALF OF THE MR. KORNS. Thank you. Your Honor.
DEFENDANT Your Honor, there are a couple of points I
would like to make preliminarily.
MR. KORNS. Your Honor, I wouldn’t want the
The first is that I would like the Court to
Court to misunderstand our position. We were
not requesting the hearing in chambers. We were understand that no lawyer, no member of our firm
just indicating that if the Court desires such a has ever filed a motion for disqualification before.
hearing, we had no objection to it. We undertake this matter not lightly, not as a
matter of course of litigation tactic. We undertake
THE COURT. Why would you even make that
it in all good faith, feeling that under the law that
proffer? it is a very appropriate motion.
MR. KORNS. Fiat was not urging a hearing in
THE COURT. Mr. Korns, I don’t go beyond your
chambers. Your Honor.
certificate of counsel, so you needn’t — 1 am sure
The only point we were making was that
you do it in good faith —
since we were raising considerations about which
MR. KORNS. Thank you. Your Honor.
the Court might very well feel sensitive, and which
we felt were delicate matters, that the Court might THE COURT. — as represented in the certificate
of counsel.
feel more comfortable having the hearing in cham¬
bers. MR. KORNS. And that it is a situation in which
THE COURT. Well, I certainly appreciate your the client feels with justification, I submit, that
interest in the Court being comfortable. There are there are questions as to the ability of any person
a number of cases — as a matter of fact there are in the Court’s position to be truly impartial, ques¬
a legion of cases dealing with a disqualification tions that can never be answered fully in advance
of recusal, and as 1 read them, they all reported, as to which nobody could give an exact answer
and they all suggest — there is nothing to the con¬ at this point in a case, and that under the law the
 A Fair Judge 113

party in this very, very important case should not 1 would just like to respond very briefly to
have to take the risk of influence on the Court’s several points made by Mr. Korns and made by
mind from the Court’s own very unfortunate expe¬ Fiat’s motion for disqualification.
rience.
We feel that the only issue before the Court
That is one point I would like to make, Your on the motion for disqualification is whether Fiat
Honor.
has established either of the standards tor dis¬
There are no dispositive cases on the issue. qualification under 28 U.S.C. section 144 or 28
It is a very small point, and what 1 would suggest U.S.C. section 455.
is this; The statutory language says that the Court In this case they have not even minimally
shall disqualify itself if there is reason to question
approached those standards. Each of those stat¬
the Court’s impartiality, and in legislative history utes require that there be facts set forth showing
the terms were used “if reasonable factual basis either a judge’s actual bias or actual facts from
for having doubts about the Court’s ability to be which a person could infer that judge’s imparti¬
impartial,’’ therefore the standard is not whether ality could reasonably be questioned. There are
the Court is, in fact, biased. no such facts in this case.
The standard is not whether a reasonable
The sole and only basis for Fiat’s motion is
man would find the Court biased. The question that Your Honor was injured by an automobile
is whether there is a reasonable factual basis for in 1975, period. There is nothing more to their
having concerns, questions, doubts about the abil¬ assertions than that.

ity of the Court or of any person in the Court’s There is no proof. There are no allegations
situation to be impartial. that Your Honor has any animosity or bias toward
Your Honor, we would just submit that in Fiat. The accident in no way involved Fiat or a
all sincerity we think that any person on the street, manufacturer, and the only point that they make
that any litigant in a similar situation would have is the inference they wish to draw and they alone
doubts about any person’s ability to be impartial that because of the serious injuries suffered by
in such a situation, and we think that it is a Your Honor, Your Honor would be unable to sit
situation that is not something that speaks to this fairly and impartially in this case.
Court’s particular capabilities. Your Honor, in However, that is simply not sufficient. The
any way, but it is an inherent fact that any person case law explains that disqualification statutes are
who has been through the very unfortunate sit¬ quite clear, that mere inference or speculation is
uation that you have would have problems being not enough. There must be absolute and grounded
truly impartial and rising above that experience. facts which would cause a person or the Court to
That is our point. Your Honor, and we think conclude that the Court is, in fact, biased.
that since the standard of the law speaks not to The purpose of the affidavit which is sub¬
what is inside the Court’s head, but speaks to an mitted in support of section 144 is to set forth
objective standard, what people on the street those facts from which the Court could determine
would think, what common litigants would think whether or not it has a bias against one of the
that the only reasonable conclusion is to say, yes, parties to the proceeding or to the subject matter
people would have doubts. of the proceeding.
Even if you think that you know that those The affidavit filed by Fiat here is abysmally
doubts are unfounded, that, in fact, people know¬ absent in those qualifications. Mr. Fallon’s affi¬
ing the public circumstances would have doubts, davit states only that Your Honor was injured by
and that is our only point. Your Honor. a car and sets forth the circumstances and facts
Thank you. I would like to reserve time to of that injury, nothing more. There are no facts,
respond to any points the Government might have no allegations of bias or animosity towards Fiat,
to — and on that basis alone the motion is groundless
and should be denied.
THE COURT. Very well.
The standard defendant will seek to assert
ORAL ARGUMENT ON BEHALF OF THE
PLAINTIFF under 455 is that the severity of a judge’s expe¬
rience would require his disqualification, and in
MS. BRADY. Good morning. Your Honor. Surell this case the severity of your injuries would dis¬
Brady of the Justice Department for the plaintiff. qualify you from sitting in this case because it
114 JUSTICE AND THE LEGAL SYSTEM

tangentially involves auto safety. can make a determination that statutory standards
However, that is not the standard under the for bias are not met in this case, that he continue
statute. Again facts must be shown showing that to preside over this case.
you do, indeed, as a result of a personal, extra Unless Your Honor has questions, I have no
judicial experience have a bias against Fiat, and further comments at this time.
that has been markedly absent here.
REBUTTAL ARGUMENT ON BEHALF OF
The logical extension of the arguments made THE DEFENDANT
here by Fiat would be that any negative or serious
MR. KORNS. Your Honor, just a couple of very
experience suffered by a Federal judge would be
brief points.
sufficient or, indeed, would require his disquali¬
fication. Your Honor, the first point I would like to
make is that Miss Brady suggests to the Court
As your Honor is aware, none of the cases
that one can never draw inferences about partiality
hold that, and indeed accepting that proposition
problems. One must always find evidence of par¬
would certainly turn judicial experience on its
head. tiality to require disqualification.
I submit that is clearly wrong. The statute,
The cases, however, do recognize that judges
for instance, sets up a number of kinds of situ¬
come to the Bench and come to proceedings before
ations where judges are required to disqualify
them cloaked with all the normal experiences of
themselves. For instance, if a judge has some rela¬
life which do include serious injuries.
tionship to one of the parties, or in the Potashnick
As regards Fiat’s assertion that the public case the judge had a business transaction with one
interest here— that the public interest would not of the counsel in the case.
be harmed in any way by Your Honor’s disqual¬ Now, Your Honor, in both of those cases the
ification, we submit that it would and that this
Court recognizes that the judges are probably not
case and others like it would suffer supreme prej¬
udice. partial at all, that there is no indication that, in
fact, those experiences and relationships make
THE COURT. Why would the public interest be them unable to handle the case in an impartial
harmed? manner, but there is a common perception that
MS. BRADY. The public interest would be harmed those things endanger impartiality and cause
because it is our position that standards for dis¬ doubt about impartiality, and, therefore, a judge
qualification have not been met. However, Fiat proceeding in such a case, even if he knows in
his own mind that he personally is free of bias,
would have Your Honor, nonetheless, step aside.
If that were the case, it would be possible he has to deal with the fact that people out there
in any case on such groundless assertions of bias who don’t know the judge personally, who only
know the gross facts that X, Y and Z happened,
for a Federal judge to step down, and despite
or that the judge at such and such a place, their
Fiat’s claims that there would be no rescheduling
reaction is to have doubts about the ability of the
problems or no date problems, we submit that
Court to be impartial, and I submit that is the
having the case transferred to a totally unknown
case here. Your Honor.
judge, to a totally unknown schedule could not
We do not point to, and I am not going to
but inject at least some level of uncertainty to the
urge here that we are pointing to some specific
normal progress of this case.
But a more important point is that as the act and saying, “See, the Court is not impartial.’’
What we are saying is, we are going to have
plaintiff in this case and as parties to many similar
a long trial in this case. This case is going to go
suits like this, the United States certainly has an
on for a long time. It is a very complicated case,
interest in having the statutory standards for the
qualification of Federal judges met, and in a case
THE COURT. Mr. Korns?
such as this where they are simply not met, the
MR. —KORNS. Yes, Your Honor.
public interest requires that those statutes be and
adhered to and that the judge step down if those THE COURT. That is your — I don’t know what
statutes cannot be met. you mean by “We are going to have a long trial
And on that basis alone we feel also the in this case. The case is going to go on for a long
public interest requires that unless Your Honor

time.”
 A Fair Judge 1 15

You are not warranted in that characteri¬ Thank you Your Honor.
zation.
THE COURT. Very well.
MR. KORNS. Let me restate it, Your Honor. This
MS. BRADY. Your Honor, may I make two brief
is a complicated case with a lot of factual ques¬
tions in it, and the only point 1 wanted to bring comments regarding counsel’s argument?
THE COURT. Brief, Miss Brady.
to the Court’s attention is that Fiat feels — and 1
think most people out there would feel that with MS. BRADY. Very brief.
the same kind of case before a court, which has
REBUTTAL ARGUMENT ON BEHALF OF
had such a personal experience, it is just not fair THE PLAINTIFF
for the litigant to have concerns, good-faith seri¬
ous concerns, about whether any such person hav¬ MS. BRADY. With regard to defendant’s asser¬
ing those experiences can be truly impartial, truly tions that there is some independent basis for Your
Honor stepping down, such as a discretionary
a peer situation in his own mind about those expe¬
riences. transfer of this case as was done by Judge Ober¬
dorfer in the Flood case, as we pointed out again,
Your Honor, 1 would also point out that the
and that supports our position, facts are necessary
cases on which the Government relies Miss Brady
for a transfer or disqualification in a case such
cites as for the proposition that the experiences
as this.
the Court brings to the Bench do not disqualify
In that case Judge Oberdorfer had termed
the Court; that all of those cases involve very
that as a prior employee of the Justice Department
different experiences, mild, every-day, typical
experiences. he had had personal involvement with the defen¬
dant, the very defendant sitting before him in the
They do not involve serious personal inju¬
criminal case, and as a former employee of the
ries, every-day problems inflicted by those inju¬
Justice Department he was aware of internal
ries, and there is no case law. The fact is there is
no case that controls this issue. Justice Department documents which could not
be made part of the public record in the criminal
We have not found any that support us, and
case then pending before him.
we don’t think the cases cited by the Government We submit to you that under all of the cases
support their position. This is a question for the
that there were facts showing the relationship in
Court to determine solely under the statutory
standards, and, your honor, the last point I would which a judge’s impartiality was reasonably ques¬
tioned, and those such facts are missing here.
make is that, as we have submitted on our papers. Thank you.
Judge Oberdorfer reached the conclusion that he
had discretion under Local Rule 305a, and we MR. KORNS. Your Honor—
submit that is correct, that under the local rule
THE COURT. Mr. Korns, I have to exercise some
the Court has discretion for a broad variety of
reasons, unlimited variety of reasons within the discretion and the discretion is that I won’t hear
any more.
Court’s sound discretion to transfer the case to
MR. KORNS. Your Honor, as the moving party,
the Calendar Committee, and that Judge Ober¬
dorfer found that an appropriate thing to do may we make just two brief points?
knowing the vast number of judges here qualified THE COURT. You have had your opportunity for
to handle this case, and we submit that if the
rebuttal. Do you want to make a rebuttal to rebut¬
Court has any doubts about Fiat having made a tal?
sufficient case to require disqualification, that the
Court should exercise its very sound discretion to MR. KORNS. Well, Your Honor, as far as 1 am
transfer this case to rid this case of any such aware, it is usually the moving party that has
issues, to make this case free of any doubts of
any concerns by litigants about the impact on the THE COURT. All right. Come to the lectern.
case.
the — KORNS. Very, very briefly. Your Honor.
MR.
Whichever way this case comes out, it should
The point about what Judge Oberdorfer did.
not be tainted by concerns, good-faith concerns
Your Honor, —
about any person’s ability to rise above these
issues. THE COURT. Counsel, 1 have read Judge Ober-
116 JUSTICE AND THE LEGAL SYSTEM

dorfer’s opinion, and, as a matter of fact, I have not make that clear to the public by releasing
talked with him about it. I don’t think there is documents to prove it, he thought it was a better
anything you can add in clarification of what he part of valor to step aside, and we would submit
did or why he did it, but I will hear you. that a similar kind of standard here. Your Honor,
MR. KORNS. Your Honor, I would submit that suggests that the Court exercise its discretion.
the public perception of that opinion would be Thank you. I apologize for taking the addi¬
tional time.
that Judge Oberdorfer knew in his heart that he
was not biased and that under the standards he THE COURT. Very well. I am ready to rule in
need not disqualify himself, but because he could this case.

United States Fiat Motors

512 F. Supp. 247

United States District Court,
District of Columbia
April 15, 1981

BARRINGTON D. PARKER, District 23, 1981 hearing, I made a comment which clearly
Judge: indicates that I prejudged an issue in this pro¬
ceeding-relating to the state of the art at the
[Background above]
time that the vehicles involved in this litigation
After a full consideration of the parties’ were produced and the corrosion experience of
memoranda of points and authorities, and the other motor vehicle manufacturers. It is claimed
argument of counsel, I conclude that Fiat’s motion that this, too, demonstrates my bias against Fiat
is frivolous and must be denied. The factual basis Motors.
for the motion is weak; the legal authority is ten¬ In October 1975, as a pedestrian, I was
uous. In sum, the motion is devoid of merit. involved in an automobile accident. I sustained
Fiat’s counsel asserts several grounds as the injury to my left leg and other minor losses. Later,
basis for disqualification. First, he claims that it I underwent surgery and an amputation above the
was only recently learned that in 1975 I was left knee. I returned to duty in the early spring
involved in an automobile accident from which I of 1976 and have since continued without incident
sustained permanent, severe, crippling injuries or interruption.
and loss; that it is alleged in the Government’s The defendant’s motion has been certified as
complaint that certain of defendant’s vehicles con¬ to good faith by its counsel as required by the
tain safety defects; that in this nonjury case I will statute. The motion is supported by a seven-page
rule on a number of factual questions and legal affidavit of Gerald Fallon, Fiat’s General Counsel
issues all related to motor vehicle safety and risks and Vice President. Several documents are
of accident. Fiat’s counsel then arrives at the con¬ attached to Mr. Fallon’s affidavit: the official
clusion that it does not believe that any human police accident report on the 1975 automobile acci¬
being who has suffered such serious injuries and dent; a news article of November 11, 1979, written
loss by an automobile, as I have, can determine several years later after I had resumed my judicial
such issues impartially and under the circum¬ responsibilities: and a third attachment, a 1975
stances that it would be unreasonable to compel release of the National Highway Traffic Safety
Administration. Several footnotes to the affidavit
their company to run the substantial risk of par¬
tiality — and expose them to potential liability in refer to the negligence litigation 1 pursued in the
staggering amounts. The company states that District of Columbia Superior Court, a civil pro¬
since my impartiality may reasonably be ques¬ ceeding seeking damages arising from the injuries
tioned, it should not be required to run that risk I sustained in 1975. The 1979 news article is of
gauntlet and that I should be disqualified. questionable relevancy.
Secondly, Fiat claims that at a recent January In advancing the motion. Fiat relies on sec-
 A Fair Judge 117

tions 144 and 455 of Title 28 U.S.C., as well as loss of a limb in an automobile accident, 1 would
the Court’s inherent authority to exercise discre¬ be unable to preside in an impartial manner and
tion and to voluntarily relinquish the assignment. without bias in litigation involving automobile
safety.
Section 144 requires the trial court to withdraw
from a proceeding whenever a party “files a timely The outer limits of a supporting affidavit
and sufficient affidavit that the judge before have been defined by our Court of Appeals; the
whom the matter is pending has a personal bias affidavit must “show a true personal bias, and.
or prejudice either against him or in favor of an must allege specific facts and not mere conclusions
adverse party.’’ It is clear that where, as here, such or generalities.” Brotherhood of Locomotive Fire¬
an affidavit is filed, accompanied by a good-faith men and Enginemen v. Bangor and Aroostook
certificate of counsel, the Court must accept the Ry. Co., 380 F.2d 570, 576 (D.C.Cir. 1967). The
affiant’s statement of facts as true and pass only Fallon affidavit fails to meet this minimum stan¬
on their legal sufficiency in demonstrating bias or dard. Moreover, a trial judge is presumed to be
prejudice. Berger v. United States, 255 U.S. 22, impartial and the affiant assumes a heavy burden
36 (1921) (applying this standard to section 21 of in demonstrating the contrary.
the Judicial Code, the precursor to section 144). Indeed, the logical extension and result of
It is also well-settled that a section 144 affidavit Fiat’s argument would require my disqualification
mandates a judge’s disqualification only if the in a substantial number of other proceedings. If,
reasons and facts set out for the belief “give fair in fact, my injuries and losses would cause a rea¬
support to the charge of bent of mind that may sonable person to question my ability to render
prevent or impede impartiality of judgment.” impartial judgments on questions of automobile
Only under those circumstances is recusal or dis¬ safety and defects, would it not also lead a litigant
qualification required. Berger, 255 U.S. at 33-34. to raise questions about my impartiality in any
I turn now to the Fallon supporting affi¬ personal injury litigation involving an automo¬
davit. It falls far short in satisfying the criteria bile? If the defendant’s position were accepted,
and standard imposed by § 144. It is factually and would it be proper for me to preside in any trial
legally deficient and otherwise flawed. The relied- involving a serious personal claim, whether it
upon “facts” are a mere recitation of the events stems from a motor vehicle collision, an aircraft
chronicled in the 1975 accident report, the civil disaster, an industrial explosion or any of an end¬
complaint later filed on my behalf, excerpts from less list of other types of accidents resulting in
depositions in that proceeding, and excerpts from serious personal injury?
the questionable news article. The affidavit does While Fiat’s argument may at first blush
refer to the serious injuries and losses I sustained seem to have a surface allure, on close exami¬
in the accident. nation and careful analysis it soon unravels. The
The most notable flaw in Fallon’s affidavit unfortunate incident which I experienced several
is that it fails to point to any fact bearing on this years ago is, of course, lasting in nature, but is
litigation or any extrajudicial attitude or statement no more lasting than some of the personal and
that I have ever made or directed toward Fiat or background experiences of other trial judges
North America or any of its corporate affiliations. where disqualification attempts were advanced by
He does not state that my complaint for damages
a litigant and denied. As Fiat’s counsel has
involved any claim of automobile safety and pointed out, no case authority directly on point
defects. He does not state that a Fiat motor vehicle or similar to the situation here, involving dis¬
was involved in my accident or that the civil com¬ qualification or recusal, has been found. However,
plaint filed by me as a result of the accident several recent cases have presented factual situa¬
involved any automobile manufacturer or any lia¬ tions in which a litigant has focused on a partic¬
bility on the part of a manufacturer. The reason ular background characteristic of personal
for such omissions is, of course, obvious. The experiences of the presiding judge.
several paragraphs of the affidavit which attempt In Parrish v. Board of Commissioners, 524

to link my injuries with a “bent of mind” against F.2d 98 (5th Cir. 1975) (en banc) (Tuttle, Gold¬
the defendant are no more than speculative and berg, dissenting. Wisdom separately dissenting),
unsupported assertions. He then advances an cert, denied, 425 U.S. 944 (1976), the Fifth Circuit
unwarranted conclusion that, because 1 sustained upheld the denial of a recusal motion under sec-
118 JUSTICE AND THE LEGAL SYSTEM

tions 144 and 455. The plaintiffs sought to dis¬ Pennsylvania, denied the recusal motion based on
qualify a district court judge who was a former his personal friendship with a kidnap victim in a
officer and still maintained membership in the criminal proceeding where the defendant was
Alabama State Bar Association which once barred charged with a bank robbery by taking a hostage.
blacks. They claimed that he could not rule in a Also, in State of Idaho v. Freedman, 478 F.Supp.
case alleging that the Bar Association discrimi¬ 33 (D. Idaho 1979), Judge Marion Callister denied
nated against blacks. The majority held that the the recusal motion in a case challenging the rat¬
affidavit in that case, like the one here, only set ification process for the Equal Rights Amendment
out general facts regarding the judge’s background because of his “prominent position” in the Mor¬
and was insufficient and fell short of making the mon Church.
required showing of personal bias. In Paschall v. Fiat’s second argument, not urged or
Mayone, 454 F.Supp. 1289, 1299-1301 (S.D.N.Y. addressed at the April 3rd hearing, will nonethe¬
1978), a case involving alleged prison beatings in less be considered. The claim that I had personal
violation of the plaintiff’s civil rights, the defen¬ knowledge of disputed evidentiary facts is based
dants moved to disqualify the trial judge because on my comment at a recent January 23rd status
of his frequent representation of prisoners in civil conference — that problems of rust and corrosion
rights cases while an active litigator with the by other automobile manufacturers similar to
NAACP Legal Defense Fund. The trial judge those alleged to have been experienced by Fiat in
denied the motion, rejecting the claim that his
this case have not been a matter of the public’s
prior litigation experience gave rise to any appear¬ attention. Fiat argues that this comment shows
ance of impartiality. Judge Constance Motley, prejudice and a prejudgment of an issue in the
also a NAACP litigator, denied efforts to secure case; that the comment demonstrates that because
her disqualification in a class action charging sex of my injuries I have taken a peculiar and par¬
discrimination under Title VII of the Civil Rights ticular interest in matters involving automobile
Act of 1964. Blank v. Sullivan & Cromwell, 418 defects and consequently I have personal knowl¬
F. Supp. 1, 4 (S.D.N.Y. 1975). She rejected defen¬ edge of evidentiary matters in this case.
dant’s argument under sections 144 and 455 that Fiat has inflated the significance of that
her strong identification with the victims of dis¬ statement. It was no more than a comment at a
crimination provided any showing that she would discovery motion hearing as to my knowledge of
be biased in the case against that law firm. Judge the state of the record and the pleadings, as then
Leon Higginbotham, as a trial judge, denied a developed by the parties. The suggestion that I
recusal motion based on similar allegations in made an evaluation of relevant evidence outside
Commonwealth of Pennsylvania v. Local 542 the scope of this proceeding and the suggestion
International Union of Operating Engineers, 388 that I had made a prejudgment of material, fac¬
F.Supp. 155 (E.D.Pa. 1974). There a labor union tual or legal issues is misplaced, exaggerated and
charged with racial discrimination in the construc¬ a gross misunderstanding of the Court’s com¬
tion industry claimed that he could not decide the ment. Standing alone, or in context, the statement
case impartially because of his long identification does not show a fixed opinion or a closed mind
as a spokesperson for racial integration and on the merits. In any event, the statement was
because of a speech he had recently given before made in open court and on the record. Under the
a predominantly black historical group. These statute “alleged bias and prejudice to be dis¬
facts. Judge Higginbotham concluded, showed qualifying must stem from an extrajudicial source
and result in an opinion on the merits of some
only the “ordinary results’’ of experiences in “this
basis other than what the judge learned from his
day and generation” and did not in any way dem¬
onstrate bias. participation in the case.” United States v. Grinnel
The personal background and experience of Corp., 384 U.S. 563, 583 (1966).
a trial judge has also been found legally insuf¬ In conclusion, putting aside all that has been
ficient for disqualification in a variety of other said — the repetitive statements, the comments and
situations. For example, in United States v. Clark, concerns set out in Fallon affidavit about my inju¬
398 F.Supp. 341, 361-63 (E.D.Pa. 1975), aff’d ries — Fiat fails to identify or to state that 1 have
without opinion, 532 F.2d 748 (3rd Cir. 1976), exhibited any personal bias or prejudice against
Judge Herbert Fogel, of the Eastern District of their company. The affidavit does not contain one
 A Fair Judge 119

unequivocal allegation of bias or prejudice attrib¬ that auto safety is an issue of general concern in
uted to me, nor can it, for none exists. Nor is the this country, and that, in fact, was recognized by
affidavit sufficient to fairly support any such the Congress when it enacted the statute at issue
inferences. Further, 1 know of nothing that would in this case. This proceeding has been assigned
lead a reasonable person to question my interest
to me for trial, and that is the extent of my inter¬
in this case.
est. The attempt to exaggerate any generalized
My only concerns with this proceeding are interest in auto safety into a specific bias by citing
that all the relevant facts be fully revealed; that injuries sustained is simply insufficient on its face.
the law be applied correctly and evenhandedly and The present efforts of Fiat rest on a crimped
that this litigation advance through the discovery and distorted consideration of the facts and a
and pretrial stages without unnecessary and superficial analysis of the applicable law. The
unwarranted delay. Fiat must, indeed, recognize defendant’s motion is baseless and it is denied.

Notes and Questions

1. Recall Berger, where the dissenting justices said that Judge Landis’ bias against
Germans as a class did not prove that he was biased against the particular defendants before

him. Isn’t Judge Parker making the same argument? Judge Parker states that the “most
noticeable flaw” in the defense attorney’s affidavit is that “it fails to point to any fact
bearing on this litigation or any extrajudicial attitude or statement that I have ever made

or directed toward Fiat.” How do you reconcile Berger and Fiatl What does it mean to be
biased against an individual? Is it possible to understand “personal bias” without reference
to a disfavored category of which the individual is a member?

2. Is Judge Parker’s reasoning persuasive — that although he lost a leg in an automobile

accident, he wasn’t run over by a Fiat? What would we say of a judge who owns substantial
equity in apartment buildings — should she recuse herself from cases where tenants are suing
landlords of buildings she does not own?

United States v. Holland

655 E2d 44
United States Court of Appeals,
Fifth Circuit
Aug. 31, 1981

PER CURIAM: tenced to three years imprisonment on each of the

This is the second appeal to this court of two counts, the sentences to run concurrently.
this case. George Holland was indicted on four After this conviction Holland employed new coun¬
counts of interstate transportation and conceal¬ sel to represent him on appeal. The principal issue
ment of stolen vehicles in violation of 18 U.S.C. on that first appeal was the propriety of an unre¬
§§ 2312, 2313. Holland was first tried before a corded conversation between the trial judge and
jury on July 25, 1979 and was found guilty on the jury in the jury room. After an hour of delib¬
the two concealment counts and not guilty on the eration the jury had sent a note to the trial judge
interstate transportation counts. He was sen¬ asking for help in filling out the verdict forms.
120 JUSTICE AND THE LEGAL SYSTEM

When the trial judge told the government and not to say last time and he chose not to say
defense attorneys that he was going into the jury anything until the appeal. I think he broke
room there was no objection from Holland’s attor¬ faith with the Court frankly and I want to
ney. On appeal we reversed and remanded for a be sure that if he has anything to say this
new trial because we found that Holland had been
time that he says it. I don’t criticize your
denied his right to a complete trial transcript. efforts but I do feel that he understood very
The case was tried again before the same well what was going on last time and he sat
judge in the fall of 1980. When the jury retired there and said nothing and his lawyer
to deliberate, the judge commented on his belief passedly [5/c] agreed to my proposal and then
that Holland had “broken faith’’ with the court raised it on - somebody raised it on appeal.
at his first trial by consenting to the judge visiting I don’t know or care who it was, it wasn’t
the jury room but then raising the issue on appeal. the fault of the lawyer. He had a duty to
Following several exchanges between the judge raise whatever he could as far as I was con¬
and defense counsel, defense counsel moved for cerned. But when somebody agrees with the
a mistrial. The motion was denied. The judge then Court about something and then refuses to
stated for the record that he intended to increase abide by it, I think I have the duty to consider
Holland’s sentence because of the incident which that and to guard against it on the next trial.
he had described. The following occurred outside And that is all I am trying to do. If Mr.
the presence of the jury: Holland has something that is bothering him
I want to know about it. If he has something
THE COURT. Now Mr. Holland, the last
that he thinks I have done wrong about I
time we tried this case I asked you and your
want to know about it and I want to know
lawyer if you had any problems with the now before we finally submit this matter to
correspondence I had with the jury. I offered
to let you and your lawyer go back with me the jury because I don’t want to treat him
to the jury room and in my judgment you wrongly but I don’t want him wasting
thousands of dollars of the Government’s
declined to go. You declined to object to
money getting a new trial about something
what 1 offered to do. I was simply trying to
that he doesn’t point out to the trial Court
save time for you, the Government and
initially. I want to be sure he has an oppor¬
everybody else. Now, you took advantage of
tunity to point out any problems he may
that on your appeal. You implied that you have.
didn’t agree to that. Is there anything about
DEFENSE COUNSEL. Your Honor, Defen¬
this trial that you haven’t agreed to that you dant Holland is concerned that the Court,
want to voice now either through yourself or
your counsel and you may consult with your in imposing a sentence in this case if he is
counsel and let him express it for you if you found guilty, the Court has already expressed
would like. to him that you feel like he broke faith with
the Court and that you resent what happened
DEFENSE COUNSEL. Your Honor, I
and he tells me that he didn’t even know
frankly don’t understand. what was going on about this conference with
THE COURT. You talk to him and see. I the jury.

don’t care if you understand or not. THE COURT. It all took place in his pres¬
DEFENSE COUNSEL. Is there anything ence. He was represented, his lawyer sat there
that you want to tell the Judge about? and as far as the Record shows said nothing.
I am almost certain that the lawyer, by action
THE COURT. You talk to him quietly so he
at least, in nodding agreed to it because I
will have a private opportunity.
was talking to all of the lawyers and they
DEFENSE COUNSEL. Other than the all indicated their assent in one way or
objections I have already made and noted for
another. If they didn’t they should have
the Record, Mr. Holland doesn’t know what accepted [5/c] to anything they felt the Court
to say, he is not a lawyer. was doing wrong about. And I do feel that
THE COURT. Well, he knew what to say or he broke faith with the Court but 1 feel that
 A Fair Judge 121

he has received a fair trial in this case and

the Record stands for that. every opportunity to object to what I did in
that proceeding, that you are trying to take
DEFENSE COUNSEL. Well, 1 would move advantage of somebody else. The lact that
it is the Court is material only in that 1
for a mistrial in light of the Court’s apparent
belief that the Defendant has somehow understand precisely what happened. II it
quote, broken faith with the Court. was somebody else 1 still would have an obli¬
THE COURT. All right, you move for a mis¬ gation in my judgment to take it into con¬
trial and that motion is overruled: denied. sideration. That is the reason I have added

It there any other problem? one year to your total sentence. 1 have added
one year to each of the counts but those are
DEFENSE COUNSEL. No, sir, not with to be served concurrently so it would be a
that. Your Honor. total addition of only one year.
THE COURT. All right. Frankly, I have He then announced that the sentence would be
expressed this on the Record for the specific increased to four years.
purpose of letting it appear clearly why 1
On appeal Holland contends that (1) the trial
intend to increase his sentence unless some¬
judge displayed such bias and prejudice as to
thing appears in the probation file that was
require a new trial before a different judge and
not in it before. I have a duty not to increase
it unless there is something that justifies an that (2) the trial judge committed error in increas¬
increase in it that I did not have before me ing the defendant’s sentence after the second trial.
Our holding with respect to the first contention
on the other occasion. And I do have this
makes consideration of the second contention
matter before me that was not before me
when I sentenced him before and I have a
The relevant statutory provision governing
unnecessary.^^
duty to consider it in my judgment but 1 disqualification of federal judges is 28 U.S.C. §
want it on the Record so that it shows clearly
455. Paragraph (a) of section 455 provides that a
my thinking about it. 1 think it does.
judge “shall disqualify himself in any proceeding
After the jury returned a verdict of guilty, the in which his impartiality might reasonably be
trial judge again stated his reason for increasing questioned.’’ This section imposes a reasonable
man standard in determining whether a judge
Holland’s sentence. The judge made the following
comments: should recuse himself. [Citing cases] Additionally

THE COURT. ... On the jury verdict of paragraph (b)(1) provides that a judge should dis¬
guilty against you on counts two and four, qualify himself “where he has a personal bias or
I sentence you to four years on count two prejudice concerning a party. ...” The general
rule is that bias sufficient to disqualify a judge
and four years on count four with those sen¬ must stem from an extrajudicial source. [Citing
tences to run concurrently with each other.
cases] In Davis v. Board of School Commission¬
Now, you will notice that I have increased
ers, 517 F.2d 1044 (5th Cir. 1975), cert, denied,
the amount of your sentence. I think that I
425 U.S. 944 (1976), however, we recognized that
have made plain for the Record why I have.
I know, as well as I can know, that you there is an exception where such pervasive
agreed with me and your lawyer agreed with bias and prejudice is shown by otherwise
me at the time of your last trial that I might judicial conduct as would constitute bias
step into the jury room and answer a ques¬ against a party.
tion which could not damage you in any way Id. at 1051. Accord, Whitehurst v. Wright, 592
and when you agree with me on something,
I think that if you dishonor that agreement F.2d 834, 837 (5th Cir. 1979) (noting that “the
that I have a duty to consider that in your single fact that the judge’s remarks were made in
sentence if that agreement comes about and
that dishonor comes about after the matters
that I considered in your first sentence. 1 32 We note, however, that North Carolina v. Pearce,
think you show by what you have done in 395 U.S. 711 (1969), requires a judge to base a more
implying that this Court did not give you severe sentence on objective reasons.
122 JUSTICE AND THE LEGAL SYSTEM

a judicial context does not prevent a finding of United States v. Thompson, 483 F.2d 527, 529 (3d
bias”). Cir. 1973). Accordingly, the judgment of convic¬
Applying this standard to the trial judge’s tion is reversed and the case remanded for a new
conduct, we conclude that a reasonable man would trial before a different judge.
be convinced that the trial judge’s impartiality REVERSED and REMANDED.
might be questioned. The trial judge’s remarks
also reflect a personal prejudice against Holland
for successfully appealing his conviction on the
basis of the judge’s actions during the prior trial. 33 We reject the government’s argument that there
The fact that these comments were made in a
was no bias because the trial judge’s comments were
judicial context outside the presence of the jury made outside the presence of the jury. We also reject a
does not prevent a finding of bias.” A “defendant similar argument that the appellant did not demonstrate
is entitled to a trial before a judge who is not any prejudicial comments or rulings. Section 455 does
biased against him at any point of the trial. ...” not require such a showing.

Notes and Questions

1. After the first trial, when Holland got a new lawyer for the appeal, he won a reversal
on the issue of denial of a trial transcript. But his lawyer also argued the matter of the
judge going into the jury room. Was Holland “breaking faith” by following the advice of
his new lawyer in arguing this latter issue on appeal? Had Holland waived his right?
2. Let’s say Holland did “break faith” with the trial judge. Why shouldn’t the judge
use Holland’s behavior during the trial as relevant information for sentencing? Does taking
the information into account show bias or prejudice? Does talking about taking it into
account show bias or prejudice?

3. The trial judge displayed his “bias” or “prejudice” in the course of the second trial.
Should the Court of Appeals give more latitude to trial judges’ behavior during trial than
outside of trial (cf. Linahan)! Did the Court of Appeals?
4. The trial judge raised his displeasure with Holland only after the jury verdict, during
sentencing. Does the appeals court cite any evidence of unfairness toward Holland during
the trial? If not, could we say that the judge kept his bias or prejudice against Holland in
check during trial, and thus his bias or prejudice did not cause Holland any injury? Does
the opinion appear to depend, after all, on a finding of bias or prejudice or some other
finding based on different premises?
5. Recall that Judge Frank said that a trial judge whose decision is reversed on appeal,
and who gets the case back on remand, remains impartial. Judge Frank was stating a widely
held belief that if a trial judge is proven to have been wrong on the law, the judge will
simply learn what the new law is and apply it fairly to both sides. How realistic is Judge
Frank’s position? Suppose, after a lengthy civil litigation, the trial judge awards a contract
decision to the corporate defendant against the complaining plaintiff. Then the plaintiff
manages to get the case reversed and remanded on appeal. Back the plaintiff goes into the
same courtroom, against the same corporation, in front of the same judge. Would you say
that there is absolutely no basis for the plaintiff to suspect that the trial judge will be angry
at the plaintiff for having gotten the case reversed on appeal? Would you say that there is
absolutely no basis for the plaintiff to suspect that the same reasons and motivations that
 A Fair Judge 123

animated the judge in the first trial to hold for the corporation will be operative again on
remand? Is it fair for the law to lay down what amounts to a conclusive presumption that
no trial judge will be biased against a plaintiff on this set of facts (That is, without an
actual comment by the judge indicating bias, as in the Holland case)?

“60 Minutes’’
December 6, 1987

Justice For Sale?

MIKE WALLACE. Is justice for sale in Texas? Some recent headlines might make you
wonder. The Wall Street Journal has called the decision of one Texas court “a national
embarrassment.” The New York Times editorialized that the conduct of the Texas courts
is “reminiscent of what passes for justice in small countries run by colonels in mirrored
sunglasses.” What triggered this barrage of criticism? The Texaco-Pennzoil dispute and the
10 and a half billion dollar verdict that a Houston jury rendered against Texaco, a verdict
permitted to stand last month by the Texas Supreme Court. But the issue at the heart of
the controversy is not which of the giant oil companies should have won the case. Instead,
it is about the fact that in Texas, where judges are elected to office like politicians, their
biggest campaign contributors are the lawyers who practice before the very judges they help
elect.

WALLACE [voice-over]. Case in point, Joe Jamail, the legendary Texas trial lawyer who
represented Pennzoil and now prides himself on being the man who bankrupted Texaco.

WALLACE [voice-over]. Joe Jamail was not so circumspect when we asked him in Corpus
Christi what people should think about his large campaign contributions to Judge Mauzy.
MR. JAMAIL. Well, who else would help? I know him about as well as anybody. I know
what his philosophy is. You know, is he going to go to his enemies? Are they going to give
him campaign contributions? That’s bull [expletive] and naive. You know it and I know it.
And — tell me, first off, our laws permit this. And not just in Texas but every elective state
that uses the elective system. So I don’t know what they think. They would think he would
be a fool if he didn’t ask. And incidentally, he never had to ask.
WALLACE. And how much did Jamail give?

MR. JAMAIL. I don’t remember what it was.

JUDGE MAUZY. Twenty-five.

MR. JAMAIL. I think it was $25,000. It may have been mo — I think it’s 25,000. But you
see, that’s not unusual for me. I think that’s the same contribution I’ve given to all of the
Supreme Court justices, Gonzales everybody.

WALLACE [voice-over]. Actually, Jamail gave Judge Mauzy some $45,000 and was one of
a group of lawyers who guaranteed a $225,000 loan to the judge.
124 JUSTICE AND THE LEGAL SYSTEM

MR. JAMAIL. To run for statewide office now, as you know, with
television and what
have you requires a good deal of money. Most of that money. I’d say
95% of it, comes
from lawyers. Because who else-the citizen isn’t going to-he doesn’t
damn. particularly give a

JUDGE JACK POPE. I think the giving and the acceptance of these unseemly sums of
money is wrong.

WALLACE [voice-over]. Judge Jack Pope retired as chief justice of the Texas
Court three years ago. Supreme

[interviewing] One would think, that common sense indicates, the justices, the judges
are going to look kindly on those lawyers who have given them the biggest contributions.
JUDGE POPE. Mr. Wallace, I’m not defending the system. I’m just reporting to you
the facts are. Pigs is pigs. what

WALLACE. Does the Texas Supreme Court have a credibility problem in the Pennzoil-
Texaco case because of the massive contributions given by lawyers on both sides?
JUDGE POPE. Well, I suppose anybody can answer that question, and I—

WALLACE. Sounds like you’re saying, you’re damn right.

JUDGE POPE. Well I am — I am saying that if I were walking into the courthouse to try
a lawsuit before a judge that I knew had been heavily financed in a successful campaign,
I would be worried about the case.

WALLACE. Case in point, during the Texaco-Pennzoil case, Joe Jamail representing Penn-
zoil, gave a $10,000 campaign contribution to the original trial judge. Anthony Farris.
Jamail’s contribution to the now-deceased Judge Farris was given just four weeks after
Judge Farris had been assigned the case. Judge Farris himself, in this letter, called the
$10,000 contribution “a princely sum.” And he sought Joe Jamail’s help to raise more
money. As the case proceeded, Jamail did just that, soliciting his lawyer friends to pony
up at least a thousand dollars apiece to Farris’ campaign. Texaco, citing the size, nature
and the timing of these contributions, attempted to disqualify the judge. But Judge Farris
successfully argued, to Texaco’s astonishment, that, “mere bias or prejudice” is not grounds
in Texas for a judge to disqualify himself.
[voice-over] When the jury returned its unanimous verdict, Pennzoil and Jamail emerged
victorious, the winner of the largest jury verdict in history. Texaco promptly appealed. And
when the appeals court turned them down, they moved to the court of last resort in Texas,
the Texas Supreme Court.
TV ANNOUNCER. Ted Robertson, a judge to be proud of.

WALLACE [voice-over]. The case before the court involved Judge Robertson’s main cam¬
paign contributor, Texas oil millionaire Clinton Manges, who has given the judge over
$120,000 in contributions at a time when Manges had a major case before the court. Initially,
Robertson said he would not vote on the case, but he changed his mind when the then-
Chief Justice announced that, for want of one vote, Mr. Manges was about to lose.
JUDGE POPE. When that happened, he then reconsidered, and he did vote five to four.
WALLACE. How long did it take him to reconsider. Judge Pope?
 A Fair Judge 125

JUDGE POPE. About as long as you and 1 have been asking the question.
WALLACE. In other words, Robertson changed his mind.

MR. ARMSTRONG. In a heartbeat, he did. And after that, there was this sort of quiet
that settled over the room while everybody tried to figure out exactly what had happened.
WALLACE. And they realized what had happened, that this man, in effect, seemed at least
to be voting his pocketbook instead of his conviction.

MR. ARMSTRONG. I think if you’d taken a poll of the people in that room that day,
that’s exactly what you would have found out. 1 don’t think somebody’s conscience changes
that quickly.

WALLACE [voice-over]. A year later, when the case came under review and his vote was
no longer the decisive one, Robertson voted with seven other justices against Manges. Because
he declined to talk to us, we were unable to ask him why, when the court’s decision had
hung on his one vote, he had sided with the man who had contributed $120,000 to his
campaign.

WALLACE. Judge Mauzy, let’s say that Joe Jamail or almost anybody has given you a
big campaign contribution, and he comes before you, let’s say he’s given you $50,000, and
he comes before you with a case, do you feel no obligation to recuse yourself, to take
yourself off that case?

JUDGE MAUZY. No, I wouldn’t feel any obligation to.

WALLACE. Because?

JUDGE MAUZY. Because that contribution I look on just like it was given to me. Anyone
who’s ever contributed to me knows this. That money is accepted to help me get elected
to office. It is not accepted for the purpose of influencing me on anything that I’m going
to say.

JUDGE MAUZY. Well, you’ll have to ask him what he gave it for.
WALLACE [voice-over]. Texaco’s lawyers have indeed made sizable contributions since losing
the jury trial. But to date, as best we can tell from the records, Jamail and Pennzoil have
out-contributed Texaco by almost a three-to-one margin. Again, the sitting Chief Justice
of the Texas Supreme Court, John Hill.
[interviewing] Three-quarters of a million dollars has been given — from both sides,
both Texaco and Pennzoil, to various judges. Does this not corrupt the process? Does it
not stand a chance of corrupting the process?

JUDGE HILL. I think again that it’s perceived by people. They look and see the amounts
of money that’s been given by litigants, be it these two litigants or others. They focus on
that. They wonder why. They get confused. They read stories. It breaks down confidence.
SEN. TEJEDA. There may be so much taint, deservedly or undeservedly, because of the
large amounts of contributions that have been given by both sides, but particularly by
Pennzoil attorneys, that I think no matter what happens in that case, the perception, the
appearance will always be there that it was bought by one side or the other.

WALLACE. On November 2, the Texas Supreme Court turned down Texaco’s appeal. Texaco
is now preparing a final appeal to the United States Supreme Court in Washington.
126 JUSTICE AND THE LEGAL SYSTEM

Notes and Questions

1. The Pennzoil-Texaco lawsuit resulted in the largest damage

s award by any jury, over
10 billion dollars. Texaco had to seek bankruptcy court protec
tion pending appeals. A few
weeks after the 60 Minutes program, a settlement was reached in
which Texaco agreed
to pay Pennzoil 3 billion dollars. Texaco had asked the United States Supre
me Court for
a writ of certiorari, but there was considerable doubt whether the Court
would grant the
writ. Given this doubt, Texaco agreed to the settlement.
The dispute concerned the competition between Texaco and Pennzoil to purchase
the
assets of Getty Oil. Let us oversimplify the figures involved to give an idea of
the basic
issues. Assume the following figures:

$10 billion = asset value of Getty Oil

$ 9 billion = amount Texaco offered to buy Getty Oil
$ 8 billion = amount Pennzoil bid to buy Getty Oil

Also assume that Pennzoil had a signed deal to buy Getty Oil at Pennzoil’s price of $8
billion, and that Texaco wrongfully interfered with this deal and purchased Getty Oil for
itself for $9 billion. Texaco answered that Getty and Pennzoil had only reached an “agree¬
ment in principle,” and not an actual contract. The question whether Texaco wrongfully
interfered with an actual deal, or whether Texaco properly competed for an asset that had
not yet gone to contract, was, as you might imagine, intensely litigated. However, as you
will see, it was not the most financially important issue in the case. In awarding decision
to Pennzoil, the Jury found that Texaco had wrongfully interfered. Let us take that assump¬
tion as given.
The financially significant issue is the amount of damages due Pennzoil. One might
think that ordinary calculation would produce the following amount of damages:

$10 billion (asset value)

- 8 billion (Getty’s offering price)

$ 2 billion (Pennzoil’s bargained-for actual damages)

What the Texas jury instead did was to award Pennzoil the full amount of Getty’s
asset value: $10 billion dollars. Did the jury think that Texaco deprived Pennzoil of the
opportunity of getting Getty for freel They must have believed that Texaco’s wrongdoing
cost Pennzoil the chance to acquire for free an asset worth $10 billion dollars, instead of
what Pennzoil bargained for — a $10 billion dollar asset in exchange for $8 billion.
Is there any way that what the jury did could make sense? It happened largely because
of an enormous strategic mistake that the highly-paid Texaco lawyers committed during the
trial: they failed to dispute the obviously erroneous calculation of damages that attorney
Jamail presented to the jury on Pennzoil’s behalf, because they were afraid that if they got
into a dispute about damages, the jury might be confused into thinking that Texaco had
in fact conceded the primary question of Texaco’s liability for interference in Pennzoil’s
deal.
 A Fair Judge 127

Texaco thought that the trial judge, after the jury’s verdict had come in, would revise
this obvious error on damages. But the trial judge explicitly refused to do so. Texaco
appealed the case to the Texas Supreme Court. Not only didn’t the Texas Supreme Court
reverse the case or even simply revise the gigantic error as to the computation of damages,
but the Court dismissed the appeal with practically no comment. The $10 billion judgment
against Texaco was allowed to stand, and plunged that company into bankruptcy.
Texaco was left with the real problem of whether relief was possible from the U.S.
Supreme Court. Their attorneys figured that if the Supreme Court heard the case, the
Justices would surely reverse the jury’s error on damages if not reverse the entire case
(because Texaco had a strong defense on the merits). But the question was whether the
Supreme Court would hear the case at all. Texaco had no statutory right of appeal to the
Supreme Court; it could only hope that four Justices out of the nine on the Court would
accept Texaco’s petition for certiorari. The Supreme Court has adopted a wholly discretionary
approach to certiorari questions. There is no way to tell in advance whether the Court will
accept or turn down a certiorari request.
Under pressure from its stockholders Texaco decided to pay Pennzoil $3 billion rather
than risk a denial of certiorari. If certiorari were granted, Texaco felt that the verdict could
be substantially reduced, if not wiped out. Between a potential victory of SO in the U.S.
Supreme Court and a potential loss of $10 billion (plus interest), Texaco agreed to pay $3
billion. The uncertainty engendered by the Supreme Court’s discretionary approach to
reviewing cases on certiorari cost Texaco $3 billion.
Does it matter that the income alone from $3 billion could have financed all the election
campaigns for all Texas judges in all Texas courts for decades to come?
2. The Wall Street Journal reported that Baker & Botts, the Houston firm which
represented Pennzoil, paid Solomon Casseb Jr. $25,000 eight months before he was named

to hear Pennzoil’s suit against Texaco. He replaced the original trial judge, who had become
ill. “At the time, Mr. Casseb was a retired judge and practicing lawyer, and had no connection
with the Texaco-Pennzoil case. He was reimbursed for helping Baker & Botts in unrelated
litigation over an oil and gas field near Laredo, Texas, the law firm said.’’^^ Judge Casseb
was the first judge to rule on the damage issue.
3. After the 1988 Olympic games in Seoul, Korea, the New York Times reported that
at least half of the 9,000 athletes who competed there used anabolic steroids in training to
enhance their performance:^®

Although Ben Johnson of Canada, the world’s fastest sprinter, and nine others were
expelled from the Summer Games for using substances banned by the International Olympic
Committee, as many as 20 other athletes tested positive and were not disqualified, said Dr.
Park Jong Sei, the director of the Olympic drug-testing lab in Seoul. Estimates of how
many Olympic athletes used steroids in training range from 10 percent to 99.9 percent. Most

Wall Street Journal, April 30, 1990.

35 System Accused of Failing Test Posed by Drugs, by Michael Janofsky with Peter Alfano, The New York
Times, November 17, 1988, at p. 1, col. 1.
128 JUSTICE AND THE LEGAL SYSTEM

experts interviewed, including Dr. Robert Voy, the chief medical officer
of the United States
Olympic Committee, agreed the figure is above 50 percent. An athlete
like Johnson, they
say, was caught because of his failure to stop using drugs before they were
his body. eliminated from

Dr. Voy suggested that some athletic federations may prolong the appeal
process so
that athletes can compete, and even win medals and set records, before their appeals
conclude.
Other cases, like the unannounced positives in Seoul, are disposed of in the athletes’
favor
before appeal is necessary.
A lot of appeals are based on technicalities,” Dr. Voy said in an interview early
this
month at his home in Colorado Springs. ‘‘Usually, the athlete is guilty as sin.
Positive urine
is still positive urine.”
These kinds of discrepancies add to a perception of impropriety, as does the fact that
individual sports test their own athletes. In essence, the same people who sell the television
rights and the tickets and who, in some cases, pay appearance fees to the athletes, are also
serving as judge and jury in cases involving test results.
‘‘You can’t have a sport test itself and be trustworthy,” Dr. Voy said. ‘‘It’s like the
fox guarding the henhouse. You can’t depend on it.”

4. Refer back to Section 455, quoted earlier. Do any of the practices in Texas as recounted
by the “60 Minutes” interviews appear to violate Section 455?

United States v. Murphy

768 F.2d 1518

United States Court of Appeals,

Seventh Circuit
July 19, 1985
Rehearing and Rehearing En Banc
Denied Sept. 27, 1985

Anna R. Lavin, Edward V. Hanrahan, Chi¬ courts.

cago, Ill., for defendant-appellant. The charges spanned many years and many
Daniel C. Murray, Asst. U.S. Atty., Chi¬ statutes. Part I of this opinion sets out the back¬
cago, Ill., for plaintiff-appellee. ground. [The middle parts, not reproduced here,
Before CUDAHY and EASTERBROOK,
address Murphy’s challenge to Operation Grey¬
Circuit Judges, and SWYGERT, Senior Circuit lord, Murphy’s arguments under particular stat¬
Judge. utes, and the conduct of the trial.] [Pjart V [looks]
at the decision of the district judge not to recuse
EASTERBROOK, Circuit Judge. himself.
John M. Murphy was an Associate Judge of
1
the Circuit court of Cook County from 1972 until
1984. He was indicted in 1983 and charged with The evidence at trial, which we now view in
accepting bribes to fix the outcome of hundreds the light most favorable to the prosecution,
of cases, from drunk driving to battery to felony showed several categories of cases in which Mur¬
theft. Some of the counts on which he was con¬ phy took bribes. We separate the evidence into
victed grew out of contrived cases staged by the several groups: traffic court, “hustling,” fixed fel¬
FBI and federal prosecutors as part of Operation ony offenses, and the cases that were contrived
Greylord, an investigation of the Cook County as part of the investigation. We omit a great deal
 A Fair Judge 129

of the evidence and describe only enough to give vailed, the lawyer would hand an envelope to the
the general picture. Some of the events we recount officer with $100 per case for Murphy and another
are pertinent to other Greylord cases still in liti¬ $10 or so for the officer; the officer would pass
gation. Our statement of the evidence and the the envelope to Murphy. Prosecutors testified that
inferences the jury could draw about Murphy’s although they won as many as 90% of their major
conduct is not meant to prejudge those cases. traffic cases against public defenders, they almost
Traffic court. The Cook County courts are never won a case in which the defendant was rep¬
organized into divisions, and supervisory judges
resented by one of the “miracle workers.”
assign other judges to particular divisions or
The testimony at the trial of this case con¬
courtrooms. From 1972 to early 1981 Murphy was cerned unidentified cases in traffic court. But
assigned to traffic court, which has courtrooms some plays stood out, even though the players
for major offenses (driving while intoxicated, leav¬ were anonymous. A prosecutor recalled one drunk
ing the scene of an accident, and so on) and minor driving case in which the defendant was repre¬
offenses (such as running a red light). Judge Rich¬ sented by Harry Kleper, a miracle worker. The
ard LeFevour was the Supervising Judge of traffic arresting police officer testified that the defendant
court; he had the authority to decide whether failed the usual roadside tests of drunkenness and
Murphy and other judges would hear major or admitted drinking beer before driving. The defen¬
minor cases. dant took the stand and did not deny imbibing;
Officer James LeFevour of the Chicago she said only that the liquor did not affect her
police, Richard LeFevour’s cousin, was assigned ability to drive. Under cross-examination she
to traffic court from 1969 through 1980. James admitted “feeling” the beer; the prosecutor then
LeFevour testified for the prosecution as part of asked: “And don’t you think it is fair to say that
an agreement under which the Government limited you were under the influence of intoxicating liq¬
its charges against him to three tax offenses. He uor?”, to which she replied, “Yes, 1 guess that is
testified that beginning in 1975 he met regularly a fair thing to say.” Judge Murphy threw up his
with Melvin Cantor, who would give him a list of hands and called a recess, turning to Kleper with
his cases that day. James LeFevour would take the remark: “Counselor, 1 suggest you talk to your
the list to Judge Richard LeFevour; Judge client.” As Murphy left the bench, the prosecutor
LeFevour would assign Murphy to hear some of
heard Murphy yell down the hall to the judges’
Cantor’s cases. James LeFevour would present chambers: “You won’t believe this. The State’s
Murphy the list of Cantor’s cases. Murphy then Attorney just got the defendant to admit she was
would find the defendants not guilty or sentence drunk.” A few minutes later Murphy reconvened
them to “supervision,” an outcome defendants the court. Kleper asked the defendant whether she
favored. Later in each day Cantor would give was drunk; she said no. In closing argument the
James LeFevour money to pass to Judge LeFevour prosecutor stressed the defendant’s admission.
and some for James to keep for a “tip.” Kleper did not give a closing argument. Murphy
Although Richard LeFevour kept the bribes ruled: “I still have a reasonable doubt. Not
for these cases, he put Murphy in a position to
“earn” his own bribes. Richard LeFevour would Hustlers. In 1981 Judge LeFevour became
assign to major cases, on a regular basis, only
Presiding Judge for Cook County’s First Munic¬
guilty.”
those judges who would “see” James LeFevour. ipal District court, which has a general jurisdic¬
Lawyers then would bribe some of the judges tion. Many of the branch courts had been
assigned to the major courtrooms. Murphy was frequented by “hustlers.” “Hustlers” are lawyers
in a major courtroom more often than most other who stand outside the courtroom and solicit busi¬
judges. ness from the people about to enter. Ethical rules
Lawyers known as “miracle workers” occa¬ long have prohibited such solicitations, and every
sionally met with James LeFevour and with appearance form in Circuit Court contains a rep¬
Joseph Trunzo, another police officer assigned to resentation that solicitation did not occur. Hus¬
traffic court. The lawyers would tell Officer tling is a profitable business nonetheless, and
LeFevour or Officer Trunzo which defendants people find ways to pursue the profits of illegit¬
they represented; the officers would pass the infor¬ imate enterprise with the same vigor they devote
to lawful activities.
mation to Murphy; after the defendant had pre¬
130 JUSTICE AND THE LEGAL SYSTEM

The profit in hustling comes from the bail Association (CBA) maintains a Lawyer Referral
system in Illinois. A defendant required to post Service. This service screens lawyers and assigns
bail may do so by depositing 10% of the bail in them to branch courtrooms to be of service to
cash. If the defendant is discharged, the case unrepresented defendants. These lawyers are
deposit (less the clerk’s handling fee) is returned. potential competitors of the hustlers, and Murphy
This payment, called the cash bond refund (CBR), apparently cultivated them as independent sources
of revenue.
also may be assigned to the defendant’s lawyer as
compensation for legal services. Assignment
Arthur Cirignani participated in the CBA’s
requires the approval of the court. Hustlers make program. (The evidence at the trial casts no shad¬
their money by persuading defendants to hire ows on the integrity of the CBA itself.) From June
them and assign the CBR, then persuading the 1980 through the end of 1983 he was assigned to
judge to release the CBR to them. a courtroom three to four times a month. When¬
Judge Thaddeus L. Kowalski, who presided ever he was assigned to Branch 29, he paid Judge
over the court known as Branch 29 from June Murphy to assign cases to him rather than to
1980 to March 1981, believed that hustlers cheated continue the proceedings and allow the hustlers
their clients at the same time as they violated to claim the CBRs.
ethical rules. Often the hustlers appeared as coun¬ Fixed cases. Murphy threw business to law¬
sel only when the case was bound to be dismissed yers; he also threw cases. Arthur Cirignani, who
anyway, as they well knew. Their “representation” testified under an arrangement that he would not
of the defendants simply diverted the CBRs from be prosecuted if he told the truth, described one
the defendants to the lawyers. Judge Kowalski such case. Cirignani represented Arthur Best,
addressed hustling in the most effective way — by charged with felony theft. The police had seized
eliminating its profitability. He refused to permit evidence from the grounds of Best’s house under
the hustlers to collect the CBRs. They soon authority of a warrant, and Cirignani moved to
deserted Branch 29. When Richard LeFevour suppress the evidence. On the day of the sup¬
became the presiding judge of the first district. pression hearing Cirignani visited Murphy’s
Judge Kowalski explained to Judge LeFevour how chambers before court began and while they were
he had cut down on hustling. Judge LeFevour
alone told Murphy that he had a “good” motion
praised Judge Kowalski and promptly transferred
to suppress. Murphy promised to “take a look at
him from Branch 29 to the East Chicago Avenue it.” Judge Murphy later granted the motion to
Police Court, which handles criminal cases orig¬ suppress, giving no reasons. The prosecutor then
inating in the Cabrini Green housing project. dismissed the case against Best. Before leaving
Judge LeFevour replaced Kowalski with Murphy. the courthouse Cirignani gave Murphy an enve¬
Hustlers flourished under Murphy, who rou¬ lope containing $300. Cirignani received a CBR
tinely permitted them to collect the CBRs. The of $1800 in the case, and the client also paid $700
directly.
hustlers showed appropriate gratitude. Every
month the lawyers, collectively known as the Hus¬ Greylord cases. Most of the evidence about
tlers Club, paid James LeFevour $2500. James fixed cases was presented by witnesses who had
kept $500 and gave the rest to Richard. (The sums concocted the cases for the purpose of the Grey¬
were reduced for some months when the hustlers’ lord investigation. Terrence Hake, an agent of the
take fell. Murphy was incapacitated by a broken FBI posing as a corrupt lawyer, would represent
ankle, and his replacement was apparently less the defendants in ghost-written cases. Agents
compliant.) After a hustler made a certain would file complaints and testify about made-up
amount, he paid an additional sum to the judge events.

of the particular court. James LeFevour told Mur¬ In one case two agents of the FBI, posing

phy of the Hustlers Club and Richard LeFevour’s as “Norman Johnson” and “John Stavros,”
claimed to have had a violent encounter in which
approval. Murphy told James LeFevour that he
approved too. Johnson injured Stavros. Hake represented John¬
Although Richard LeFevour kept the prin¬ son, the “defendant.” Wearing a tape recorder.
cipal bribe, there were still rewards for Murphy. Hake privately visited Judge Murphy’s chambers
As at traffic court, Murphy was free to establish on the morning the case was set for hearing. He
his own stable of bribe-givers. The Chicago Bar introduced himself as Johnson’s lawyer and said
 A Fair Judge 131

he wanted a verdict of not guilty. Murphy replied:

Act. The remaining count was based on the Rack¬
“I’ll throw the fucker out the window.” Hake eteer Influenced and Corrupt Organizations Act
mentioned dealings with Joseph Trunzo and sug¬ (RICO), 18 U.S.C. § 1962(d), which prohibits the
gested that Trunzo would make arrangements;
operation of an “enterprise” in interstate com¬
Murphy said: “That’s okay, everything’s alright.” merce through a “pattern” (two or more events)
Murphy found Johnson not guilty. But things were
of “racketeering” (the violation of specified state
not well. After the trial Hake gave $300 to Officer
or federal laws). The “enterprise” here was the
Joseph Trunzo ($200 for Murphy, $1{K) for Joseph Cook County Circuit Court.
and his twin brother Jim). They did not deliver The district court imposed 24 concurrent
the $200 to Murphy; they apparently planned to sentences. The longest, ten years, are based on
fleece Hake (a novice at corruption) by keeping the RICO and Hobbs Act counts. The court did
the money, leaving Hake to face an angry judge. not impose a fine or a forfeiture.
Murphy told Hake the following week that he had [In sections of the opinion not reproduced
not seen either Trunzo. A few days later Murphy here, the court of appeals found without merit
visited traffic court, still the assignment of both
Murphy’s legal objections to the statutes under
Trunzos, looking for them. Joseph Trunzo then which he was convicted. Further, the court found
gave Murphy the $200 he had received from Hake, that the trial judge did not commit reversible error
explaining to Murphy that “I got busy and forgot in his supervision of the trial.]
to call you.” (In the other trials Joseph Trunzo V
kept Hake’s money and Murphy did not get paid,
but so far as the record shows Murphy did not This leaves for consideration the most dif¬
know the money in these cases had been meant ficult and troubling question: whether the district
for him.) judge was required to recuse himself.
Hake represented the “defendants” in sev¬ The principal lawyer for the United States at
eral other cases fabricated by the FBI. The payoffs trial was Dan K. Webb, then the U.S. Attorney.
went more smoothly. On each occasion the Webb and Judge Kocoras are the best of friends.
“defendant” was discharged, and Hake paid Offi¬ They met when both were Assistant United States
cer James LeFevour, apparently a more honest Attorneys in Chicago between 1971 and 1975.
criminal than the brothers Trunzo. James
Judge Kocoras stated that “our professional rela¬
LeFevour passed most of the money to Richard tionship developed into a social friendship as
LeFevour and told Murphy that Judge LeFevour well.” Immediately after Judge Kocoras sentenced
wanted verdicts of not guilty. Hake had some Murphy on August 8, 1984, Judge Kocoras, Dan
additional recorded ex parte conversations with Webb, and the Kocoras and Webb families
Murphy. In one Hake conceded that his client was repaired to the Calloway Gardens Resort, Pine
guilty but said he needed a verdict of not guilty; Mountain, Georgia. They resided there in adjoin¬
Murphy said “it’ll be discharged that’s all” and ing cottages. The trip had been planned before
later acquitted the “defendant.” the trial, and Judge Kocoras advanced the date
The outcome. The jury convicted Murphy of sentencing so that he could wrap up the Mur¬
on 24 of the 27 counts in the indictment. The phy case before going on vacation with the Webb
counts involved four legal theories. Some counts family. This was not an isolated event. The Webbs
charged violations of the mail fraud statute, 18 and Kocorases had vacationed together at Cal¬
U.S.C. § 1341. The checks constituting the CBRs loway Gardens in 1982.
were mailed to the attorneys, and each mail fraud Counsel for Murphy learned of the 1984
count was based on the mailing of one CBR. The vacation for the first time after Judge Kocoras

“fraud” was one committed by Murphy on the had sentenced Murphy. In February 1985 counsel
people of Cook County, who lost his honest serv¬ filed a motion seeking Judge Kocoras’s recusal
ices. Some counts were based on the Hobbs Act, under 28 U.S.C. § 455(a), which provides that a
18 U.S.C. § 1951(a), which prohibits extortion judge “shall disqualify himself in any proceeding
affecting interstate commerce. The extortion lay in which his impartiality might reasonably be
in the solicitation and receipt of the bribes. Some questioned.” Judge Kocoras denied the motion.
counts were based on the theory that Murphy Neither the close friendship between Kocoras
aided and abetted others who violated the Hobbs and Webb nor either of the vacations was dis-
132 JUSTICE AND THE LEGAL SYSTEM

closed on the record. Yet the statute places on the unnecessary to pursue the further question
judge a personal duty to disclose on the record whether the conduct presents the appearance of
any circumstances that may give rise to a reason¬ impropriety — although it is always possible to
able question about his impartiality. Although a inquire into actual impropriety no matter how
judge may accept a waiver of disqualification common the conduct may be.
under § 455(a), the “waiver may be accepted [only In today’s legal culture friendships among
if] it is preceded by a full disclosure on the record judges and lawyers are common. They are more
of the basis of the disqualification.” 28 U.S.C. § than common; they are desirable. A judge need
455(e).
not cut himself off from the rest of the legal
Murphy contends that the vacation plans community. Social as well as official communi¬
give rise to a reasonable question about any cations among judges and lawyers may improve
judge’s ability to remain impartial. No one doubts the quality of legal decisions. Social interactions
that Judge Kocoras was in fact impartial; his rep¬ also make service on the bench, quite isolated as
utation for integrity and impartiality is outstand¬ a rule, more tolerable to judges. Many well-qual¬
ing. Yet the statutory test is not actual impartiality ified people would hesitate to become judges if
but the existence of a reasonable question about they knew that wearing the robe meant either dis¬
impartiality. When a question arises about friend¬
charging one’s friends or risking disqualification
ship between a judge and a lawyer, “[t]he two in substantial numbers of cases. Many courts
fold test is whether the judge feels capable of therefore have held that a judge need not dis¬
disregarding the relationship and whether others qualify himself just because a friend — even a close
can reasonably be expected to believe that the friend — appears as a lawyer. [Citing cases]
relationship is disregarded.” Advisory Opinion These cases also suggest, however, that when
No. 11, Interim Advisory Committee on Judicial
the association exceeds “what might reasonably
Activities (1970).
be expected” in light of the associational activities
The statutory standard puts to the judge a of an ordinary judge, the unusual aspects of a
question about the objective state of the legal and social relation may give rise to a reasonable ques¬
lay culture. The court must consider whether an
tion about the judge’s impartiality. The relation
astute observer in either culture would conclude between Judge Kocoras and U.S. Attorney Webb
that the relation between judge and lawyer (a) is was unusual. These close friends had made
very much out of the ordinary course, and (b) arrangements before the trial began to go off to
presents a potential for actual impropriety if the a vacation hideaway immediately after sentencing.
worst implications are realized. The inquiry is Most people would be greatly surprised to
entirely objective, see Pepsico, Inc. v. McMillen, learn that the judge and the prosecutor in a trial
764 F.2d 458, 460-461 (7th Cir. 1985), hnd is of political corruption had secret plans to take a
divorced from questions about actual impropriety. joint vacation immediately after trial. An objec¬
The existence of a “reasonable question” tive observer “might wonder whether the judge
varies from time to time as ordinary conduct of could decide the case with the requisite aloofness
lawyers and judges changes. When John Marshall and disinterest.” The test for an appearance of
was the Chief Justice, the Justices and many of partiality in this circuit is “whether an objective,
the lawyers who practiced in the Supreme Court disinterested observer fully informed of the facts
lived in the same boarding house and took their underlying the grounds on which recusal was
meals together. Washington, D.C., was still a sought would entertain a significant doubt that
small town and neither justices nor counsel lived justice would be done in the case.” That hypo¬
there year-round. See G. Edward White, The thetical observer would be troubled by what hap¬
Working Life of the Marshall Court, 1815-1835, pened in this case.
70 Va.L. Rev. 1 (1984). It is accepted today for a This is not an occasion on which to lay down
judge in the United Kingdom to hear a case in rules for the permissible extent of social ties
which his sibling or child is an advocate. The between judge and counsel. Social relations take
ordinary standards of conduct of the legal pro¬ so many forms that it would be imprudent to
fession reflect judgments about the likelihood of gauge all by a single test. We decide only the case
actual impropriety in a particular case. Unless the before us. But with appreciation for both the dif¬
conduct is substantially out of the ordinary, it is ficulty of deciding how much is too much, and
 A Fair Judge 133

deference to the contrary judgment of a careful both vacations.

and upright judge, we conclude that an objective
Lydon’s friendship with Judge Kocoras
observer reasonably would doubt the ability of a removes some of the sting from the revelation
judge to act with utter disinterest and aloofness about the vacation plans of the judge and the
when he was such a close friend of the prosecutor
prosecutor. The defense camp’s knowledge did not
that the families of both were just about to take
abrogate any obligation to spread the information
a joint vacation. A social relation of this sort
on the record and seek Murphy’s consent to his
implies extensive personal contacts between judge participation in the case, however. Section 455(e)
and prosecutor, perhaps a special willingness of
requires waiver on the record, not waiver by impli¬
the judge to accept and rely on the prosecutor’s cation. This court said in SCA Services, /nc. v.
representations. The U.S. Attorney lays his own Morgan, 557 F.2d 110, 117-18 (7th Cir. 1977), that
prestige, and that of his office, on the line in a there is no time limit on a motion for recusal.
special way when he elects to try a case himself. The principal disqualification statute in effect
By acting as trial counsel he indicates the impor¬ before § 455 was amended in 1974 had contained
tance of the case and of a conviction, along with a time limit for motions, and the Department of
his belief in the strength of the Government’s case. Justice asked Congress to put such a limit in the
It is a particular blow for the U.S. Attorney per¬ new § 455 as well. Congress did not, and the court
sonally to try a highly visible case such as this concluded in Morgan that this implies the absence
and lose. A judge could be concerned about hand¬ of a time limit.
ing his friend a galling defeat on the eve of a joint Our decision stands alone, however. The
vacation. A defendant especially might perceive Fifth Circuit has called the discussion in Morgan
partiality on learning of such close ties between dicta and rejected the conclusion on the merits,
prosecutor and judge. reasoning that Congress did not put a time limit
Yet this conclusion does not lead to a deci¬ in § 455 because time limits were already so firmly
sion in Murphy’s favor. Although perhaps 999 of fixed in both statute and common law that there
1000 observers would have been stunned to dis¬ was no need to add another. [Citing cases]
cover that judge and prosecutor were about to go We need not decide whether to reconsider
on a joint vacation, the remaining one of the Morgan in light of [later cases]. It would be dif¬
thousand was on Murphy’s defense team. Mat¬ ficult to find a “waiver” on this record because
thias Lydon, the principal trial lawyer for Mur¬ neither Murphy nor Lydon knew before sentenc¬
phy, had been in the U.S. Attorney’s office at the ing of the vacation plans, the only source of the
same time as Dan Webb and Judge Kocoras. appearance of impropriety. We believe, however,
Lydon and Webb later were partners in private that the absence of a waiver is not dispositive.
practice. All three were friends and remained so. The question here is not really whether Judge
Judge Kocoras stated that “my professional rela¬ Kocoras was required to recuse himself when Mur¬
tionship with [Lydon] developed into a social phy filed his motion. Judge Kocoras already had
friendship as well, and no less than that with Mr. imposed sentence; there were no further proceed¬
Webb. Those friendships developed [at the U.S. ings from which Judge Kocoras could be recused.
Attorney’s office] and continue to the present What Murphy wants is not recusal from future
day.” The vacation at Calloway Gardens Resort proceedings but the nullification of everything
in 1982 had included Lydon and his family as well that went before. We concluded that this is not
as the Webb and Kocoras families. Although the appropriate consequence of a recusal for
Lydon has filed an affidavit stating that he did appearance of impropriety.
not know of the plans for the 1984 vacation, he In cases decided under § 455(a), disqualifi¬
admitted that he knew of the close relation cation runs from the time the motion was made
between Webb and Kocoras and did not deny the or granted. In Pepsico, our most recent case under
probability of future vacations at what is appar¬ § 455(a), the court ordered the district judge to
ently the favorite resort of former members of the stand aside from the time a party filed the motion

U.S. Attorney’s office in Chicago. Murphy him¬ for recusal; we did not vacate all of the judge’s
self filed an affidavit conceding that he knew that earlier orders and require the new judge to start
Lydon, Webb, and Judge Kocoras are close afresh. Our research has not turned up any case
friends, although Murphy denied knowledge of involving mere appearance of impropriety in
134 JUSTICE AND THE LEGAL SYSTEM

which the court set aside decisions that had been

cases in other circuits holding that “appearance”
taken by the district judge before any party asked questions are waived if not timely asserted — so
for recusal.^* the judge may continue to sit even after the
The statute requiring recusal when the motion — also show that appearance of impropri¬
judge’s impartiality might reasonably be ques¬ ety does not undercut personal rights. And unless
tioned vindicates interests of the judicial system an error affects substantial rights, it is not a basis
as a whole. It is important to the administration of reversal. 28 U.S.C. § 2111; Fed. R. Grim. P.
52(a).
of justice that judges both be and appear to be
impartial. When a question about impartiality It is important in criminal cases especially
reasonably arises, the judge must stand aside in to induce defendants to present their claims in a
order to preserve public confidence in the courts. timely fashion. A battery of rules — from contem¬
But this does not imply that a judge who is a poraneous objection rules to forfeiture rules such
close friend of counsel will provide an unjust dis¬ as Fed. R. Grim. P. 12(f) — requires defendants to
position; if it implied that, the question would be present claims while there is still time to eliminate
one of actual impropriety rather than the the problem and avoid a needless trial. If they fail
“appearance” of impropriety. No one thinks that to do so, the claim is forfeit. [Giting cases] For¬
Chief Justice Marshall acted with actual impro¬ feiture may occur even in the absence of an explicit
priety when he heard arguments from lawyers with time limitation if the right is knowable in advance
whom he shared a boarding house. The rule of § and exercise of the right would prevent repetitious
455(a) is designed to put an extra measure of litigation. [Giting cases and] Peter Westen, Away
safety into the system. When that extra measure from Waiver: A Rationale for the Forfeiture of
fails, the result is regrettable, and the judicial sys¬ Constitutional Rights in Criminal Procedure, 75
tem as a whole suffers, but this does not mean Mich. L. Rev. 1214, 1254-59 (1977). Only if the
that the parties actually received an unjust trial. accused could not have known of the right or
The waiver provision of § 455(e), which some other “cause” impedes a defendant from
applies to the “appearance” of impropriety issues standing on his rights will a court permit the
under § 455(a) but not to any actual conflict of defendant to have two trials when a timely asser¬
interest under § 455(b), reinforces our conclusion tion of the right would have held the number to
one.
that § 455(a) is concerned with perceptions rather
than actual defects in the administration of jus¬ Gertainly a request for recusal before trial
tice. Under § 455(a) and (e) a party may stand would have avoided any possibility of retrial.
on his right to a judge about whom no reasonable Murphy might have given a formal waiver on the
question may be asked; yet the possibility of record; Judge Kocoras might have recused him¬
waiver implies that the judge can provide a fair self; U.S. Attorney Webb might have stepped
trial even if such questions may be asked. Section aside and allowed the case to be tried by a member
455(e) gives a party an absolute right to remove of his office. Murphy had all the information he
a judge (by declining to waive), but it necessarily needed to initiate inquiry. Although according to
implies that conduct after a waiver (and therefore the affidavits of Lydon and Murphy the defense
before one, too) does not automatically deprive camp did not know of the vacation plans for 1984,
the party of substantial personal rights. The many Lydon knew of the actual vacation in 1982, and
Murphy knew of the longstanding friendship
among Lydon, Webb, and Judge Kocoras. This
was more than enough to put a reasonable person
36 Hall v. SBA, 695 F.2d 175 (5th Cir. 1983), comes on notice of the potential gains from further
the closest. In Hall a magistrate’s law clerk accepted inquiry, perhaps believing that an ethical judge
employment with the plaintiff’s law firm and thereafter such as Judge Kocoras would bend over backward
worked on the magistrate’s opinion. The clerk also had to avoid favoring the prosecutor in such a case
been a member of the plaintiff class. The court thought
and that the defense therefore had more to gain
this required the magistrate’s opinion to be set aside,
although no motion was made until after the opinion from the Kocoras-Lydon friendship than it had
was released. We think that Hall is best understood as to lose from the Kocoras-Webb friendship. The
a case of actual bias (of the clerk) imputed to the court, defendant is bound by a tactical choice such as
this may have been, whether or not he participated
not simply as an “appearance” case.
 A Fair Judge 135

personally in that choice. [Citing cases] the unavailability of a transcript of the conference
Ultimately, however, we do not rest on the
on the jury instructions, have led us to resolve all
fact that Lydon, Webb, and Judge Kocoras went ambiguities in favor of Murphy. After this review
on vacation together in 1982. A detailed inquiry
we are confident that Judge Kocoras was scru¬
into what the defense camp knew and when is not pulously impartial in fact and conducted this trial
essential when the motion under § 455(a) is filed in accord with the highest standards of the bench.
as late as this was. A criminal trial is too serious Murphy has had a fair trial, and the judgment is
and too costly to permit a defendant to sit on
possible errors, hoping to have a crack at an AFFIRMED
acquittal (or low sentence) and then still a second just.
trial. If a defendant wants a judge to stand aside SWYGERT, Senior Circuit Judge, concur¬
under § 455(a), he must make the appropriate ring specially.
motion. Judicial acts taken before the motion may With respect to the recusal issue, 1 can con¬
not later be set aside unless the litigant shows cur only in the result ultimately reached by the
actual impropriety or actual prejudice; appear¬ court. I do not believe that a discussion of the
ance of impropriety is not enough to poison the merits of the recusal issue is necessary. Whether,
prior acts. See Margoles v. Johns, 660 F.2d 291 at least in hindsight, the judge and prosecutor
(7th Cir. 1981), cert, denied, 455 U.S. 909 (1982) exercised poor judgment is irrelevant because the
(appearance of impropriety, and perhaps even motion for recusal was untimely and waived.
actual impropriety, may not be raised for the first The motion was filed several months after
time on collateral attack); Barry v. United States Murphy was sentenced. As such, it should be
528 F.2d 1094, 1100 (7th Cir.), cert, denied, 429 treated as a Fed.R.Crim.P. 33 motion for a new
U.S. 826 (1976) (when the trial is “impeccably trial on the basis of newly-discovered evidence. In
fair and just” an erroneous failure to recuse is this circuit, such a motion could properly be enter¬
harmless error). tained by the district court even though an appeal
A judicial impropriety serious enough, and was pending. [Citing cases] Given defense coun¬
secret enough, to escape everyone’s notice before sel’s close relationship and past vacation trips with
trial probably also would be serious enough to the prosecutor and judge, the evidence supporting
create an actual conflict of interest. By the time
the recusal motion was not “newly-discovered evi¬
the time the trial has been completed, an appear¬ dence” within the meaning of Rule 33; had coun¬
ance of impropriety may have ripened into an sel exercised due diligence, the facts surrounding
actual impropriety. If it did not, and if no one the relationship between the prosecutor and judge
asked for recusal before trial, then there is no would have come to light much earlier. Given this
need for still another trial to vindicate the con¬ failure to exercise due diligence, Murphy has
cerns that underlie § 455(a). waived his right to present the merits of his recusal
It is regrettable that the vacation plans were motion. In short, the defendant’s strategy was to
not disclosed. This cast an unfortunate light on “lay in the weeds,” a tactic that should have and
what was otherwise a well-handled trial. Judges did backfire.
and counsel should keep in mind the need to dis¬ Such a holding would not contradict the
close unusual degrees of social as well as profes¬ strict waiver and timeliness rules announced by
sional affiliation. The Webb-Kocoras vacation this court in SCA Services, Inc. v. Morgan, 557
plans should have been disclosed. As it turns out,
F.2d 110 (7th Cir. 1977). There, the petitioner’s
the silence did not adversely affect any substantial right to be in court to present the recusal motion
rights of Murphy. He could have protected himself was not in question: the motion was filed in ref¬
fully by acting on the information he and Lydon erence to a civil case pending trial. The issue here
possessed. At all events any appearance of impro¬ is whether the petitioner, subsequent to his con¬
priety under § 455(a) is not actual impropriety, viction and sentence, has “waived” his right to
so that recusal does not retroactively invalidate get back in court to present new evidence. This
judicial acts that preceded the motion Murphy is a distinct issue from whether, assuming the peti¬
filed. tioner has a right to be in court in the first place,
Both the circumstances concerning the vaca¬ his right to require recusal has been “waived.”
tion plans of the judge and the prosecutor, and Morgan applies only in the latter context; the case
136 JUSTICE AND THE LEGAL SYSTEM

says nothing about the law of waiver and time¬

liness in the context of postconviction proceed¬
ings.

Judicial Impropriety and Reversible Error”

Steven Lubet

The Murphy court made its greatest mistake in conflating the concepts
of impropriety
and partiality, treating the two terms as virtually interchangeable. This allowed
the court
to conclude that, because no demonstrated impropriety occurred, the appeara
was irrelevant. nce of partiality

In truth, partiality ought to be understood as a distinct and particularly baneful

subcategory of impropriety. The larger concept includes many forms of misconduct that do
not necessarily imply unfairness. For example, impatience, discourtesy, delay, lack of dil¬
igence, undignified conduct, distraction from duty, public comment on pending litigation,
and collateral misuse of office may all give rise to the appearance of impropriety. In the
absence of some prejudice to a litigant, however, it is unlikely that any of these forms of
behavior would be considered an actual impropriety sufficient to void a decision.
Impartiality, though, is a far more elusive concept. In the course of a significant trial
a federal district court judge will make a nearly limitless number of discretionary decisions,
most of which are neither subject to nor capable of meaningful review. The interplay of
subtle factors on human choice is a subject that baffles psychologists, much less appellate
court judges. It is for that reason that a prophylactic standard — the appearance of parti¬
ality — is most often substituted for actual evidence of bias.
The Murphy court also recognized the problem of subliminal motivation:
A social relation of this sort implies extensive personal contacts between judge and pros¬
ecutor, perhaps a special willingness of the judge to accept and rely on the prosecutor’s
representations ... A judge could be concerned about handing his friend a galling defeat
on the eve of a joint vacation. 768 F.2d 1538.

The court went on, however, to conclude, presumably after searching the record, that
“No one doubts that [the judge] was in fact impartial; his reputation for integrity and
impartiality is outstanding.” This is a non-sequitur. If the judge’s conduct gave rise to the
appearance of partiality, then someone must doubt that he was in fact impartial. How can
it be otherwise? We may have no doubt that the judge committed no distinct reversible
error. We may have no doubt (and I myself have no doubt) that the judge made every
possible conscious effort to be scrupulously fair to the defendant. But on the subconscious
or subliminal level neither we, nor the judge himself, can know what motivated each of

the judge’s hundreds of discretionary decisions. Of course, it is always the case that many
of a judge’s motivations will be unknown, but here we have an additional factor, a factual
reason to doubt. Therefore, we must doubt.

37 3 Grim. Just. 26, 28-29 (1988).

 A Fair Judge 137

The Seventh Circuit dismissed this problem as the “mere appearance of impropriety,”
that never ripened into actual prejudice. 768 F.2d at 1539, 1541. It is not so much their
analysis as their taxonomy that is in error. Substitute partiality for impropriety and there
can be nothing “mere” about it.

Notes and Questions

1. Do you agree with Lubet’s distinction between impropriety and partiality? Does his
distinction help to explain previous cases in this Chapter as well as Murphy!
2. The Murphy case was headline news in Chicago for many days. Judging from the
news stories, the public was shocked and concerned that Judge Kocoras and Prosecutor
Webb went on a vacation together right after the trial. Suppose that, at the time the Court
of Appeals’ decision was handed down affirming Murphy’s conviction, you were asked to
write a newspaper article stating the possible reasons the Court could have for its decision.
Which of the following reasons appear plausible and which do not?

(a) It’s perfectly all right for a judge and the chief prosecutor in a trial to go on
vacation together right after the trial.
(b) Although sometimes a judge might be suspected of partiality if the judge were
the sort of person who “could be concerned about handing his friend a galling defeat
on the eve of a joint vacation” (as the Murphy decision put it), this particular judge —
Judge Kocoras — is above that sort of thing. How do we know? The judges on the
Court of Appeals tell us so. (In Chicago, the judges of the Court of Appeals work
on the upper floor of the same building which houses the federal district judges’
courtrooms.)
(c) Despite the appearance of partiality, the Court of Appeals found that the trial
was fair, and so defendant Murphy wasn’t hurt by the apparent prejudice.
(d) Defendant Murphy’s own counsel also was friendly with Judge Kocoras, and
therefore the prejudice evened out.

(e) The defendant’s counsel knew all along about the close relationship between
chief prosecutor and trial judge, and if they had brought a recusal motion at the
beginning of the trial. Judge Kocoras would clearly have been forced to step down.
But the defendant’s counsel wanted a heads-I-win-tails-you-lose situation. They figured
either that Murphy would be acquitted at trial, or if not, they could then charge that
Judge Kocoras was unfair and maybe get a new trial. And it is this strategy, and this
alone, that the Court of Appeals would not countenance.

3. If we are concerned about the public appearance of partiality, then how can the
public really be expected to understand a complex motivation such as explanation (e) in the
previous question? Can we even expect newspaper and TV reporters to convey the strategic

situation clearly? If not, isn’t public appearance a poor test for actual impropriety? Or is
explanation (e) above not an answer to partiality at all, but rather a competing consider-
138 JUSTICE AND THE LEGAL SYSTEM

ation one having to do with the efficient operation of the court system
and the need to
have counsel object to matters in a timely fashion in order to
avoid unnecessary retrials?

3.4 Judicial partiality toward substantive law

This section is devoted not to judicial partiality toward the parties

in one case, but to
the preferences of judges toward the content of the law, hence toward
classes of parties
who are treated the same according to law.

The Enforcement of Morals^®

Patrick Devlin”
In 1958 I was invited to deliver the second Maccabaean Lecture in Jurisprudence
of
the British Academy, the first having been delivered by Lord Evershed, then Master of the
Rolls. It was an honour not to be declined but yet to be accepted only with much misgiving
.
A man who has passed his life in the practice of the law is not as a rule well equipped to
discourse on questions of jurisprudence and I was certainly no exception to that rule.
Fortunately, as it seemed to me, there was a subject which was both topical and within my
powers to handle. In September 1957 the Wolfenden Committee had made its report rec¬
ommending that homosexual practices in private between consenting adults should no longer
be a crime. I had read with complete approval its formulation of the functions of the
criminal law in matters of morality.
I had in fact given evidence before the Committee. Lord Goddard, then Lord Chief
Justice, thought it desirable that evidence should be given by one judge of the Queen’s
Bench who thought that the law should not be altered and by another who was in favour
of reform. I was in favour of reform. I agree with everyone who has written or spoken on
the subject that homosexuality is usually a miserable way of life and that it is the duty of
society, if it can, to save any youth from being led into it. I think that that duty has to
be discharged although it may mean much suffering by incurable perverts who seem unable
to resist the corruption of boys. But if there is no danger of corruption, I do not think
that there is any good the law can do that outweighs the misery that exposure and impris¬
onment causes to addicts who cannot find satisfaction in any other way of life. Punishment
will not cure and because it is haphazard in its incidence I doubt if it deters. Those who
are detected and prosecuted are unlucky; and the full offence is frequently proved only
because one or the other in his weakness confesses. I do not think that any judge now
imposes a severe sentence in such cases. I cannot myself recollect ever having passed a
sentence of imprisonment at all.
There is to my mind only one really powerful argument against reform and I put it in
the form of a question. Can homosexuals be divided into those who corrupt youth and

3* Pp. v-x, 4-24 (1965).

3’ Judge of the Queen’s Bench, 1948-1960; Lord of Appeal, 1961-.

 A Fair Judge 139

those who do not? If they cannot, is there a danger that the abolition of the offence between
consenting adults might lead to an increase in corruption? The Wolfenden Committee
thought that there was a division of this sort. Some judges of great experience lor whose
views I have a deep respect think otherwise. There is room for a more comprehensive study
of case histories on this point than has, so far as 1 know, yet been made.
At any rate what I proposed to the Committee was one of those illogical compromises
that would be rejected out of hand in any system of law that was not English. I suggested
that, while the full offence of buggery should be retained, the lesser offences of indecent
assault and gross indecency should be abolished unless the acts were committed on youths.
It seemed to me that this compromise might go some way towards meeting the fears of
those who thought that the repeal of the Act would be an admission that buggery should
be tolerated. It would afford time to see whether offences against youths increased and, if
it were found to be so, the way back would be less difficult than if the Act had been totally
repealed. It would result, I thought, in prosecutions for buggery being brought only in clear
and flagrant cases, since the alternative of a conviction for the lesser offence would no
longer be available. Anyway, it seemed to me as much as public opinion would be at all
likely to support. The proposal was not favoured by the Committee and I dare say they
were quite right.
I must disclose at the outset that I have as a judge an interest in the result of the
inquiry which I am seeking to make as a jurisprudent. As a judge who administers the
criminal law and who has often to pass sentence in a criminal court, I should feel hand¬
icapped in my task if I thought that I was addressing an audience which had no sense of
sin or which thought of crime as something quite different. Ought one, for example, in
passing sentence upon a female abortionist to treat her simply as if she were an unlicensed
midwife? If not, why not? But if so, is all the panoply of the law erected over a set of
social regulations? I must admit that I begin with a feeling that a complete separation of
crime from sin (I use the term throughout this lecture in the wider meaning) would not be
good for the moral law and might be disastrous for the criminal.
[Some people argue that] a function for the criminal law independent of morals must
be found. This is not difficult to do. The smooth functioning of society and the preservation
of order require that a number of activities should be regulated. The rules that are made
for that purpose and are enforced by the criminal law are often designed simply to achieve
uniformity and convenience and rarely involve any choice between good and evil. Rules
that impose a speed limit or prevent obstruction on the highway have nothing to do with
morals. Since so much of the criminal law is composed of rules of this sort, why bring
morals into it at all? Why not define the function of the criminal law in simple terms as
the preservation of order and decency and the protection of the lives and property of
citizens, and elaborate those terms in relation to any particular subject in the way in which
it is done in the Wolfenden Report? The criminal law in carrying out these objects will
undoubtedly overlap the moral law. Crimes of violence are morally wrong and they are also
offences against good order; therefore they offend against both laws. But this is simply
because the two laws in pursuit of different objectives happen to cover the same area. Such
is the argument.
[My position is that] if the criminal law were to be reformed so as to eliminate from
140 JUSTICE AND THE LEGAL SYSTEM

It everything that was not designed to preserve order and

decency or to protect citizens
(including the protection of youth from corruption), it would
overturn a fundamental
principle. It would also end a number of specific crimes. Euthan
asia or the killing of another
at his own request, suicide, attempted suicide and suicide pacts,
duelling, abortion, incest
between brother and sister, are all acts which can be done in privat
e and without offence
to others and need not involve the corruption or exploitation
of others. Many people think
that the law on some of these subjects is in need of reform, but
no one hitherto has gone
so far as to suggest that they should all be left outside the criminal law
as matters of private
morality. They can be brought within it only as a matter of moral princi
ple. It must be
remembered also that although there is much immorality that is not
punished by the law,
there is none that is condoned by the law. The law will not allow its proces
ses to be used
by those engaged in immorality of any sort. For example, a house may not be
let for
immoral purposes, the lease is invalid and would not be enforced. But if what
goes on
inside there is a matter of private morality and not the law’s business, why does
the law
inquire into it at all?
I think that it is not possible to set theoretical limits to the power of the State to
legislate against immorality. It is not possible to settle in advance exceptions to the general
rule or to define inflexibly areas of morality into which the law is in no circumstances to
be allowed to enter. Society is entitled by means of its laws to protect itself from dangers,
whether from within or without. The law of treason is directed against aiding the king’s
enemies and against sedition from within. The justification for this is that established
government is necessary for the existence of society and therefore its safety against violent
overthrow must be secured. But an established morality is as necessary as good government
to the welfare of society. Societies disintegrate from within more frequently than they are
broken up by external pressures. There is disintegration when no common morality is
observed and history shows that the loosening of moral bonds is often the first stage of
disintegration, so that society is justified in taking the same steps to preserve its moral
code as it does to preserve its government and other essential institutions. The suppression
of vice is as much the law’s business as the suppression of subversive activities; it is no
more possible to define a sphere of private morality than it is to define one of private
subversive activity. It is wrong to talk of private morality or of the law not being concerned
with immorality as such or to try to set rigid bounds to the part which the law may play
in the suppression of vice. There are no theoretical limits to the power of the State to
legislate against treason and sedition,'*® and likewise I think there can be no theoretical
limits to legislation against immorality. You may argue that if a man’s sins affect only
himself it cannot be the concern of society. If he chooses to get drunk every night in the
privacy of his own home, is any one except himself the worse for it? But suppose a quarter
or a half of the population got drunk every night, what sort of society would it be? You
cannot set a theoretical limit to the number of people who can get drunk before society is

Note that Great Britain, unlike the United States, does not have a written Constitution limiting the power
of the government. In the United States, the First Amendment guarantees of freedom of speech, press, and
assembly may be interpreted to set limits on sedition laws. [-Eds.]
 A Fair Judge 141

entitled to legislate against drunkenness. The same may be said of gambling.

How is the law-maker to ascertain the moral judgements of society? It is surely not
enough that they should be reached by the opinion of the majority; it would be too much
to require the individual assent of every citizen. English law has evolved and regularly uses
a standard which does not depend on the counting of heads. It is that of the reasonable
man. He is not to be confused with the rational man. He is not expected to reason about
anything and his judgement may be largely a matter of feeling. It is the viewpoint of the
man in the street — or to use an archaism familiar to all lawyers — the man in the Clapham
omnibus. He might also be called the right-minded man. For my purpose 1 should like to
call him the man in the jury box, for the moral judgement of society must be something
about which any twelve men or women drawn at random might after discussion be expected
to be unanimous. This was the standard the judges applied in the days before Parliament
was as active as it is now and when they laid down rules of public policy. They did not
think of themselves as making law but simply as stating principles which every right-minded
person would accept as valid. It is what Pollock called “practical morality,” which is based
not on theological or philosophical foundations but “in the mass of continuous experience
half-consciously or unconsciously accumulated and embodied in the morality of common
sense.” He called it also “a certain way of thinking on questions of morality which we
expect to find in a reasonable civilized man or a reasonable Englishman, taken at
random.”*’ It is not nearly enough to say that a majority dislike a practice; there must
be a real feeling of reprobation. Those who are dissatisfied with the present law on homo¬
sexuality often say that the opponents of reform are swayed simply by disgust. If that were
so it would be wrong, but I do not think one can ignore disgust if it is deeply felt and not
manufactured. Its presence is a good indication that the bounds of toleration are being
reached. Not everything is to be tolerated. No society can do without intolerance, indig¬
nation, and disgust; they are the forces behind the moral law, and indeed it can be argued
that if they or something like them are not present, the feelings of society cannot be weighty
enough to deprive the individual of freedom of choice. I suppose that there is hardly anyone
nowadays who would not be disgusted by the thought of deliberate cruelty to animals. No
one proposes to relegate that or any other form of sadism to the realm of private morality
or to allow it to be practiced in public or in private. It would be possible no doubt to point
out that until a comparatively short while ago nobody thought very much of cruelty to
animals and also that pity and kindliness and the unwillingness to inflict pain are virtues
more generally esteemed now than they have ever been in the past. But matters of this sort
are not determined by rational argument. Every moral judgement, unless it claims a divine
source, is simply a feeling that no right-minded man could behave in any other way without
admitting that he was doing wrong. It is the power of common sense and not the power
of reason that is behind the judgements of society. But before a society can put a practice
beyond the limits of tolerance there must be a deliberate judgement that the practice is
injurious to society. There is, for example, a general abhorrence of homosexuality. We
should ask ourselves in the first instance whether, looking at it calmly and dispassionately.

Essays in Jurisprudence and Ethics 278, 353 (1882).

142 JUSTICE AND THE LEGAL SYSTEM

we regard it as a vice so abominable that its mere presence is an offence.

If that is the
genuine feeling of the society in which we live, I do not see how society can be
denied the
right to eradicate it. Our feeling may not be so intense as that. We may feel about
it that,
if confined, it is tolerable, but that if it spread it might be gravely injurious;
it is in this
way that most societies look upon fornication, seeing it as a natural weakness which must
be kept within bounds but which cannot be rooted out. It becomes then a question
of
balance, the danger to society in one scale and the extent of the restriction in the other.
On this sort of point the value of an investigation by such a body as the Wolfenden
Committee and of its conclusions is manifest.
The limits of tolerance shift. This is supplementary to what I have been saying but of
sufficient importance in itself to deserve statement as a separate principle which law-makers
have to bear in mind. I suppose that moral standards do not shift; so far as they come
from divine revelation they do not, and I am willing to assume that the moral judgements
made by a society always remain good for the society. But the extent to which society will
tolerate I mean tolerate, not approve — departures from moral standards varies from gen¬
eration to generation. It may be that over-all tolerance is always increasing. The pressure
of the human mind, always seeking greater freedom of thought, is outwards against the
bonds of society forcing their gradual relaxation. It may be that history is a tale of contraction
and expansion and that all developed societies are on their way to dissolution. I must not
speak of things I do not know; and anyway as a practical matter no society is willing to
make provisions for its own decay. I return therefore to the simple and observable fact that
in matters of morals the limits of tolerance shift. Laws, especially those which are based
on morals, are less easily moved. It follows as another good working principle that in any
new matter of morals the law should be slow to act. By the next generation the swell of
indignation may have abated and the law be left without the strong backing it needs. But
it is then difficult to alter the law without giving the impression that moral judgement is
being weakened. This is now one of the factors that is strongly militating against any
alteration to the law on homosexuality.
The machinery which sets the criminal law in motion ends with the verdict and the
sentence; and a verdict is given either by magistrates or by a jury. As a general rule,
whenever a crime is sufficiently serious to justify a maximum punishment of more than
three months, the accused has the right to the verdict of a jury. The result is that magistrates
administer mostly what I have called the regulatory part of the law. They deal extensively
with drunkenness, gambling, and prostitution, which are matters of morals or close to them,
but not with any of the graver moral offences. They are more responsive than juries to the
ideas of the legislature; it may not be accidental that the Wolfenden Report, in recommending
increased penalties for solicitation, did not go above the limit of three months. Juries tend
to dilute the decrees of Parliament with their own ideas of what should be punishable.
Their province of course is fact and not law, and I do not mean that they often deliberately
disregard the law. But if they think it is too stringent, they sometimes take a very merciful
view of the facts. Let me take one example out of many that could be given. It is an offence
to have carnal knowledge of a girl under the age of sixteen years. Consent on her part is
no defence; if she did not consent, it would of course amount to rape. The law makes
special provision for the situation when a boy and a girl are near age. If a man under
 A Fair Judge 143

twenty-four can prove that he had reasonable cause to believe that the girl was over the
age of sixteen years, he has a good defence. The law regards the offence as sufficiently
serious to make it one that is triable only by a judge at assizes. “Reasonable cause” means
not merely that the boy honestly believed that the girl was over sixteen but also that he
must have had reasonable grounds for his belief. In theory it ought not to be an easy
defence to make out but in fact it is extremely rare for anyone who advances it to be
convicted. The fact is that the girl is often as much to blame as the boy. The object of the
law, as judges repeatedly tell juries, is to protect young girls against themselves; but juries
are not impressed.
The part that the jury plays in the enforcement of the criminal law, the fact that no
grave offence against morals is punishable without their verdict, these are of great importance
in relation to the statements of principle that 1 have been making. They turn what might
otherwise be pure exhortation to the legislature into something like rules that the law-makers
cannot safely ignore. The man in the jury box is not just an expression; he is an active
reality. It will not in the long run work to make laws about morality that are not acceptable
to him.
The law should enforce public morality not by the formulation of hard and fast rules,
but by a judgement in each case taking into account the sort of factors I have been
mentioning. The line that divides the criminal law from the moral is not determinable by
the application of any clear-cut principle. It is like a line that divides land and sea, a
coastline of irregularities and indentations. There are gaps and promontories, such as adul¬
tery and fornication, which the law has for centuries left substantially untouched. Adultery
of the sort that breaks up marriage seems to me to be just as harmful to the social fabric
as homosexuality or bigamy. The only ground for putting it outside the criminal law is that
a law which made it a crime would be too difficult to enforce; it is too generally regarded
as a human weakness not suitably punished by imprisonment. All that the law can do with
fornication is to act against its worst manifestations; there is a general abhorrence of the
commercialization of vice, and that sentiment gives strength to the law against brothels and
immoral earnings. There is no logic to be found in this. The boundary between the criminal
law and the moral law is fixed by balancing in the case of each particular crime the pros
and cons of legal enforcement in accordance with the sort of considerations I have been
outlining. The fact that adultery, fornication, and lesbianism are untouched by the criminal
law does not prove that homosexuality ought not to be touched. The error of jurisprudence
in the Wolfenden Report is caused by the search for some single principle to explain the
division between crime and sin. The Report finds it in the principle that the criminal law
exists for the protection of individuals; on this principle fornication in private between
consenting adults is outside the law and thus it becomes logically indefensible to bring
homosexuality between consenting adults in private within it. But the true principle is that
the law exists for the protection of society. It does not discharge its function by protecting
the individual from injury, annoyance, corruption, and exploitation; the law must protect
also the institutions and the community of ideas, political and moral, without which people
cannot live together. Society cannot ignore the morality of the individual any more than it
can his loyalty; it flourishes on both and without either it dies.
I have said that the morals which underlay the law must be derived from the sense of
144 JUSTICE AND THE LEGAL SYSTEM

right and wrong which resides in the community as a whole;

it does not matter whence the
community of thought comes, whether from one body of doctrin
e or another or from the
knowledge of good and evil which no man is without. If the reason
able man believes that
a practice is immoral and believes also— no matter whether the
belief is right or wrong, so
be it that it is honest and dispassionate — that no right-minded member
of his society could
think otherwise, then for the purpose of the law it is immoral.
This, you may say, makes
immorality a question of fact — what the law would consider as self-evident
fact no doubt,
but still with no higher authority than any other doctrine of public policy.
I think that that
is so, and indeed the law does not distinguish between an act that is immora
l and one that
is contrary to public policy. But the law has never yet had occasion to inquire
into the
differences between Christian morals and those which every right-minded member
of society
is expected to hold. The inquiry would, I believe, be academic. Moralists would
find
differences, indeed they would find them between different branches of the Christian faith
on subjects such as divorce and birth-control. But for the purpose of the limited
entry
which the law makes into the field of morals, there is no practical difference. It seems
to
me therefore that the free-thinker and non-Christian can accept, without offence to his
convictions, the fact that Christian morals are the basis of the criminal law and that he
can recognize, also without taking offence, that without the support of the churches the
moral order, which has its origin in and takes its strength from Christian beliefs, would
collapse.

Questions
1. A public prosecutor might choose not to prosecute certain offenses, such as a
neighborhood poker game. Yet if there is a law against gambling, why shouldn’t the pros¬
ecutor be obliged to prosecute all gamblers? Is there a fear that if the prosecutor did, society
would demand the decriminalization of gambling? Who would be hurt if society did demand
it?
2. A judge is in a different position from a prosecutor. A judge must rule as to a
defendant who has been charged with committing a crime. Yet isn’t Lord Devlin saying
that the judge is in the same position as a prosecutor: a judge can acquit a defendant, or
give a very light sentence (a rap on the knuckles) to a gambler? Is this a proper conception
of judicial office?
3. Is Lord Devlin saying that it is worse for a judge to attempt to enforce moral laws
that no longer have the support of society (such as minor gambling) than not to enforce
them?
4. Is Lord Devlin saying that a judge ought to enforce moral laws that have the support
of society (ascertained through the “man in the Clapham omnibus’’ or jury) even if “enlight¬
ened” public opinion (as expressed through the Wolfenden report, for example) is opposed?
5. Does Lord Devlin follow two principles as a judge: (1) the activity must be criminal,
according to legislation; AND (2) a majority of people must want the law to enforce it?
If so, when (2) changes even though (1) remains the same, would Lord Devlin change his
own thinking and throw the case out of court?
 A Fair Judge 145

6. Why does Lord Devlin feel that he ought to enforce the law against homosexuality
when defendants charged with homosexual practices are brought before him?
7. Suppose that today, in the United States, a doctor is prosecuted for aborting a fetus.
Suppose that the mother is thirteen years old, unmarried, does not know who the father
is, and says that she simply did not want a baby. The doctor concedes that there was no
threat to the health of the mother and that the fetus was normal. Now suppose that this
case could go before two judges. Judge A strongly believes in a right to life, and that
abortions are murder in the eyes of God. Judge B strongly believes that the mother has an
absolute right to abort a fetus at any time. To sharpen the problem, suppose, further, that
the trial is without a jury (a “bench” trial) and that the facts are undisputed. The doctor
is charged with deliberate manslaughter, a Class A felony with a statutory penalty of 5 to
25 years. Now consider the contexts in which the case could arise:

A. The time is 1950, and the state in which this case takes place has a statute
explicitly prescribing that any doctor who performs an abortion commits the felony of
manslaughter. The fetus is aborted when it is in its first month. What should Judge
A decide? What should Judge B decide? If you have different answers to these two
questions, how do you justify the difference?
B. The time is the present, and the state in which this case takes place has no
abortion statute, but it does have a manslaughter statute. The fetus is aborted when
it is in its first month. What should Judge A decide? What should Judge B decide?
If you have different answers to these two questions, how do you justify the difference?
C. Same situation as in B. above, but the fetus is aborted when it is in its fifth
month. What should Judge A decide? What should Judge B decide? If you have different
answers to these two questions, how do you justify the difference?

Law and the Modern Mind'**

Jerome Frank

A survey was made of the disposition of thousands of minor criminal cases by the
several judges of the City Magistrate’s Court in New York City during the years 1914 to
1916 with the express purpose of finding to what extent the “personal equation” entered
into the administration of justice. It was disclosed that “the magistrates did differ to an
amazing degree in their treatment of similar classes of cases.” Thus of 546 persons charged
with intoxication brought before one judge, he discharged only one and found the others
guilty, whereas of the 673 arraigned before another judge, he found 531 not guilty. In
disorderly conduct cases, one judge discharged only 18% and another discharged 54%. “In
other words, one coming before Magistrate Simons had only 2 chances in 10 of getting off.

^2 p. 112 (1930). Frank, you will recall, later became a federal judge.
146 JUSTICE AND THE LEGAL SYSTEM

If he had come before Judge Walsh he would have had more than 5 chances in 10 of getting
off.” In vagrancy cases, the percentage of discharges varied from 4.5% to 79%. When it
came to sentences, the same variations existed. One judge imposed fines on 84% of the
persons he found guilty and gave suspended sentences to 7%, while one of his fellows fined
34% and gave suspended sentences to 59%.

New Yorker Cartoon

Two judges are walking down the steps of the courthouse in their flowing black robes.
One of them is speaking to the other. The caption reads: “Days when I’m feeling rotten I
sentence em all to ten years. Days when I’m feeling good, I sentence every one of ’em to
six months. It all averages out.”

Philosophy, Jurisprudence, and Jurisprudential Temperament

of Federal Judges^^

Ruggiero J. Aldisert^^
H.L.A. Hart discussed the importance of ascertaining the conventional morality of an
actual social group, referring to “standards of conduct which are widely shared in a particular
society, and are to be contrasted with the moral principles or moral ideals which may govern
an individual’s life, but which he does not share with any considerable number of those
with whom he lives.”^* Perhaps this is the most critical aspect of our inquiry. The judge
must screen out personal bias, passion, and prejudice, and attempt always to distinguish
between a personal cultivated taste and general notions of moral obligations. These standards
of conduct reflect an obligation to respect rules of society. They are, in Hart’s formulation,
primary rules of obligation because of “the serious social pressure by which they are
supported, and by the considerable sacrifice of individual interest or inclination which
compliance with them involves.”"** Wellington said that the way in which one learns about
the conventional morality of society “is to live in it, become sensitive to it, experience
widely, read extensively, and ruminate, reflect, and analyze situations that seem to call

moral obligations into play.”"*^

Yet the attempt to base a decision on social consensus is fraught with peril and, in
the interpretation of constitutional precepts, may be inappropriate. A classic example of
judges mistaking the public consensus is the position perennially espoused by Justices

« 20 IND. L. Rev. 453, 483-84 (1987).

Chief Judge, U.S. Court of Appeals for the Third Circuit.

^5 H.L.A. Hart, The Concept of Law 165 (1961).
Id.

Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on .Adjudication, 83
Yale L.J. 221, 246 (1973).
 A Fair Judge 147

William J. Brennan, Jr., and Thurgood Marshall in the death penalty cases. Their concurring

opinions in Furman v. Georgia*^ argued that the death penalty was unconstitutional “cruel
and unusual punishment” because it was out of step with contemporary community values.
Yet the rush of state legislatures to impose the death penalty since their 1972 statements
shows a clarity of community reaction completely opposite to their statements.*’
To some extent, adherence to the principle of neutrality in judicial decisionmaking
provides a check against the temptation to substitute personal for social values. Professor
Kent Greenawalt has observed:

Serious moral choices typically involve some conflict between an action that would serve
one’s narrow self-interest and an action that would satisfy responsibilities toward others.
The dangers of bias are extreme; either we value too highly our own interest or over¬
compensate and undervalue it. The discipline of imagining similar situations in which we
are not involved or play a different role more nearly enables us to place appropriate values
on competing considerations.®®

408 U.S. 238 (1972).

Moreover, a Gallup Poll taken in November 1985 disclosed that three out of four Americans favored the
death penalty, seventeen percent opposed it, and eight percent were undecided. N.Y. Times, Nov. 28, 1985, at 20,
col. 3.

50 Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 982, 997 (1978).

Mills V. Wyman

20 Mass. (3 Pickering) 207

Supreme Judicial Court of Massachusetts, 1825

[The defendant’s son, age 25, was suddenly son of the defendant were not bestowed at his
taken sick on his return from a voyage at sea. He request. The son was in no respect under the care
was poor and in distress. The plaintiff, a stranger of the defendant. He was twenty-five years old,
to him, helped him and gave him board and nurs¬ and had long left his father’s family. On his return
ing care for fifteen days. Four days later, after from a foreign country, he fell sick among strang¬
the plaintiff had incurred these expenses, the ers, and the plaintiff acted the part of the good
father (the defendant in this case) wrote a letter Samaritan, giving him shelter and comfort until
to the plaintiff promising to pay him all his he died. The defendant, his father, on being
expenses. But the father did not follow through, informed of this event influenced by a transient
and the plaintiff now brings an action in assump¬ feeling of gratitude, promises in writing to pay
sit (contract).] the plaintiff for the expenses he had incurred. But
he has determined to break this promise, and is
PARKER, C.J. The rule that a mere verbal
willing to have his case appear on record as a
promise, without any consideration, cannot be strong example of particular injustice sometimes
enforced by action, is universal in its application, necessarily resulting from the operation of general
and cannot be departed from to suit particular rules.
cases in which a refusal to perform such a promise What a man ought to do, generally he ought
may be disgraceful. to be made to do, whether he promise or refuse.
The promise declared on in this case appears But the law of society has left most of such obli¬
to have been made without any legal considera¬ gations to the interior forum, as the tribunal of
tion. The kindness and services towards the sick conscience has aptly been called. Is there not a
148 JUSTICE AND THE LEGAL SYSTEM

moral obligation upon every son who has become gation, as they are called; imperfect, not because
affluent by means of the education and advan¬ they are less binding upon the conscience than
tages bestowed upon him by his father, to relieve those which are called perfect, but because the
that father from pecuniary embarrassment, to wisdom of the social law does not impose sanc¬
tions upon them.
promote his comfort and happiness, and even to
share with him his riches, if thereby he will be A deliberate promise, in writing, made freely
and without any mistake, one which may lead the
made happy? And yet such a son may, with impu¬
party to whom it is made into contracts and
nity, leave such a father in any degree of penury
expenses, cannot be broken without a violation
above that which will expose the community in
of moral duty. But if there was nothing paid or
which he dwells, to the danger of being obliged promised for it, the law, perhaps wisely, leaves
to preserve him from absolute want. Is not a the execution of it to the conscience of him who
wealthy father under strong moral obligation to makes it. It is only when the party making the
advance the interest of an obedient, well disposed promise gains something, or he to whom it is made
son, to furnish him with the means of acquiring loses
validity.
something, that the law gives the promise
and maintaining a becoming rank in life, to rescue
him from the horrors of debt incurred by mis¬ For the foregoing reasons we are all of the
fortune? Yet the law will uphold him in any degree opinion that the nonsuit directed by the Court of
of parsimony, short of that which would reduce Common Pleas was right, and that judgment be
his son to the necessity of seeking public charity. entered thereon for costs for the defendant.®’
Without doubt there are great interests of
society which justify withholding the coercive arm 5’ Thus, the plaintiff not only lost the case, but
of the law from these duties of imperfect obli¬ [-Eds.]
also was ordered to pay for the defendant’s court costs.

Doing What Comes Naturally®^

Stanley Fish

It is this picture that underwrites much of the thinking in legal circles about the activity
of judging. What judges do, at least when they are doing their jobs properly, is set their
personal feelings aside and come to their decisions by consulting the rule (of law) they have
accepted as a bridle on their wills. Thus Kenney Hegland®® cites a famous contract case
{Mills V. Wyman) in which Chief Justice Parker of the Massachusetts Supreme Court,
finding himself faced with a defendant whose actions he abhors nevertheless rules for him
because the law he has sworn faithfully to execute bids him do so. Hegland takes this as
a particularly perspicuous example of the operation of independent constraints on “personal
predilections,” an example which, he claims, refutes the “deconstructionist position that
legal doctrine does not constrain judicial decision.”
As Hegland sees it, the opposition is clear: “personal predilections” versus the con¬
straint of doctrine, and equally clear is the larger opposition of which this one is an instance:
civilization and order versus the anarchy of the individual will. But is it really so clear as
that? Not if one interrogates the opposition at a basic level and asks, as a starter, what
exactly is a “personal predilection”? Where does it come from? In order for the opposition

52 10-13 (1989).

53 Professor Hegland teaches law at the University of Arizona. [-Eds.]

 A Fair Judge 149

to work with the force (a nice word) Hegland intends, personal predilections or preferences
must come from nowhere, must originate in the self in a way unrelated to social and public
norms; otherwise the opposition would be blurred. But how could such a preference even
form apart from some conventional system of thought or mores in relation to which it was
possible and thinkable? In the case Hegland cites, although Judge Parker is repelled by a
man who breaks a promise to someone who cared for his dying son, he decides that since
the promise was not supported by “consideration” (the Good Samaritan did not bargain
for payment) it is not legally binding. But it hardly makes any sense to say that Parker’s
distaste for this ingrate is a “personal predilection”; rather it is a sentiment that forms part
of a conventionally established system of obligation which Parker has internalized just as
he has internalized the legal doctrine that now trumps his conventional sentiment. The
conflict he feels is not between a normative obligation and “mere preference,” but between
two normative obligations one of which carries the day because it is central to the role he
is now playing. Indeed, there is no such thing as a “mere preference” in the sense that
makes it a threat to communal norms, for anything that could be experienced as a preference
will derive from the norms inherent in some community.
The conclusion only appears to be paradoxical: all preferences are principled, that is,
they are intelligible and doable only by virtue of some principled articulation of the world
and its possibilities; but by the same token all principles are preferences, because every
principle is an extension of a particular and contestable articulation of the world and none
proceeds from a universal perspective (a contradiction in terms.®'*) When Judge Parker holds
for the defendant because no consideration attached to his promise, he speaks from a vision
of public life that is anything but neutral and impersonal. In that vision contracting parties
begin in what has been called an “equality of distrust” and are presumed to be bargaining
for advantage; actions of altruism and simple faith are not recognized except as aberrations
that the law will neither respect nor protect. In the eyes of some these “principles” of
contract are obviously WAtprincipled, although for others (including, presumably. Judge
Parker), they are necessary to the healthy functioning of a free market. In short, one
person’s principles are another person’s illegitimate (“mere”) preferences, and any charac¬
terization of a dispute or a choice that puts the principles on one side and the “personal
predilections” on the other is itself interested and (in the sense defined above) personal. In
the (certain) event that some characterization will prevail (at least for a time) over its rivals,
it will do so because some interested assertion of principle has managed to forcefully dislodge
the other (equally interested) assertions of principle. It is in this sense that force is the sole
determinant of outcomes, but the sting is removed from this conclusion when force is
understood not as “pure” or “mere” force (phenomena never encountered) but as the urging
(perhaps in the softest terms) of some point of view, of some vision of the world replete
with purposes, goals, standards, reasons — in short, with everything to which force is usually

5* Fish means here that no person can possibly attain a “universal perspective” because no person can stand
outside the universe, in which he or she is immersed, and view the universe as a whole. Hilary Putnam agrees;
he calls the universal perspective the “God’s-eye view” by way of emphasizing that no human can have such a
perspective. [-Eds.]
150 JUSTICE AND THE LEGAL SYSTEM

opposed in the name of principle.

Once the opposition between principle and force has been
deconstructed, any number
of issues begin to look very different, including the issue of
constraints. Constraints ... are
what is supposedly required to prevent a self composed
of desire from going its own
(unprincipled) way; but if desires (or preferences) cannot have shape
independently of some
normative vision, the self that is composed of desires is, ipso facto,
composed of constraints,
and no additional constraints are needed to give it a direction
it already has. This is perhaps
the most surprising and counterintuitive consequence of the denial of
independent constraints
(which is one and the same with the denial of literal meaning);
rather than leaving us in a
world where the brakes are off, it situates us in a world where the brake
s— in the form of
the imperatives, urgencies, and prohibitions that come along with any
point of view (and
being in a point of view is not something one can avoid)— are always and alread
y on. When
Judge Parker sits down to consider Mills v. Wyman, he is in no sense “free” to
see the
facts in any way he pleases; rather his very first look is informed (constrained
) by the ways
of thinking that now fill his consciousness as a result of his initiation into the profes
sional
community of jurists. That is to say, he looks with judicially informed eyes, eyes
from
whose perspective he cannot distance himself for a single second except in order to slip
into another way of seeing, no less conventional, no less involuntary. At no time is he free
to go his own way for he is always going in a way marked out by the practice or set of
practices of whose defining principles (goals, purposes, interdictions) he is a moving exten¬
sion, and therefore it would be superfluous of him to submit his behavior to principles
other than the ones that already, and necessarily constrain him.

Concluding Questions

1. In what ways do Lubet (after Murphy in the previous section) and Fish agree? How
do they differ? (This is a hard question!)
2. Does judicial bias toward the content of the law exist? Is it as important a problem
for justice as judicial bias toward parties? Are the two always (sometimes?) separate and
distinct?
3. Do we want judges to be biased in favor of existing law? Would we want them to
be biased against? Should the answer depend on whether existing law is just? Should the
answer depend on whether the judge believes existing law will produce a just result?
4. What does “bias in favor of existing law” mean? What does Fish say? Does existing
law itself create the possibility of bias? Or is a judge simply “constrained” (as Fish would
put it) to decide in the way the legal community expects, and then simply “fill in” the legal
principles to justify that decision?
5. Is judicial decisionmaking ultimately a matter of power? Justice? Both? Neither?
 151

Group Justice Versus Individual

Justice: Category Problems
CHAPTER FOUR

We have been dealing so far with bias and prejudice as it comes up in procedural
contexts in the courtroom. Now we begin to look at substantive law. As you read the cases
and materials in this and the next chapter, the larger questions you should keep in mind
include: When is it fair to attribute group characteristics to a member of the group? Are
we doing justice to an individual if we attempt to do justice to a group? What does it mean
to do justice to a group? Can we separate the individual from the group when we want to
do justice to the individual?

McFarland v. Smith
611 F.2d 414

United States Court of Appeals,

Second Circuit
Oct. 29. 1979

Steven Lloyd Barrett, New York City (The

denied by the prosecutor’s inclusion of improper
Legal Aid Society, Federal Defender Services racial remarks in the summation.
Unit, New York, N.Y., on the brief), for peti¬ Petitioner was found guilty by a jury of crim¬
tioner-appellant. inal sale of a controlled substance (heroin) in the
Kenneth R. Fisher, Rochester, N.Y. (Lawr¬ second degree, N.Y. Penal Law § 220.41, and sen¬
ence T. Kurlander, Monroe County Dist. Atty., tenced on June 2, 1976 in the New York Supreme
Rochester, N.Y. on the brief), for intervener- Court (Monroe County) to a term of eight years
appellee. to life. The Appellate Division affirmed without
Before VAN GRAAFEILAND, NEWMAN opinion and the New York Court of Appeals
and KEARSE, Circuit Judges. denied permission to appeal. A petition for a writ
of habeas corpus was denied on May 30, 1978 by
NEWMAN, Circuit Judge: the United States District Court for the Western
This is an appeal from a denial of a petition District of New York.
for a writ of habeas corpus brought by a state At trial, the State’s case depended almost
prisoner to challenge his conviction essentially on entirely on the testimony of Patricia Dorman, a
the ground that his constitutional rights were Rochester undercover police officer. She testified
152 JUSTICE AND THE LEGAL SYSTEM

that she purchased $450 worth of heroin from MR. PAPPALARDO. I’ll also instruct the
petitioner in the bedroom of a second-floor apart¬
ment. She recognized petitioner as a person she MR. KING. Objection.
had known in high school and had since seen
occasionally. The defense case depended entirely jury—
THE COURT. Yes, that’s improper. You can¬
not instruct the jury.
on the testimony of petitioner’s friend, Isaac Sin¬
gletary. He testified that he and petitioner had MR. PAPPALARDO. Excuse me, I seem to
come to the apartment house to see two prostitutes be interrupted before I finish my statement
with whom they had earlier made a date. Accord¬ because the interruption is what the People
ing to Singletary, he and petitioner went upstairs believe the People’s position, as in every sin¬
to the second-floor apartment together with a gle case, it makes no difference what color
Puerto Rican man who had entered the building
the Defendant is. I’ll finish my point. Don’t
just after they did. Singletary further testified that you convict anyone on color or race. It makes
he waited in a front room, petitioner used the no difference. It makes no difference to me.
bathroom, and the Puerto Rican man entered the I hope it makes no difference to Mr. King
bedroom along with a Black woman (Dorman) and anybody else, but the fact is that Officer
and another Puerto Rican man. Singletary heard Dorman is black and the Defendant is black.
a brief discussion in the bedroom, after which the That’s a fact. That’s a fact like you consider
Black woman left the building. Singletary said
any other fact. If she’s lying she’s lying
petitioner emerged from the bathroom, they both against a member, a person that [5/c] is
asked the Puerto Ricans where the girls were, and black.
when they were told there were no girls, both left. MR. KING. Objection.
The inference from Singletary’s testimony was that
Dorman had purchased narcotics from the first THE COURT. Overruled.

Puerto Rican male, and not from petitioner. MR. PAPPALARDO. That is a proper con¬
Not surprisingly the summation of defense sideration for you to examine, to think about
counsel contended vigorously that Officer Dor¬
and now she’s lying against another black
man’s version was false and Singletary’s version person. You think about it because that’s
was true.
what Mr. King is telling you that she’s lying.
In the course of the prosecutor’s summation Someone she knows and that’s [5/c] a mem¬
the following occurred: ber of her own race. You use your common
sense to think about that.
MR. PAPPALARDO [the prosecutor]. The
officer herself being, by the book’ a young The prosecutor thus urged the jury to credit
woman, black woman, by the way this
Defendant is black also. Officer Dorman’s testimony on the theory that the
probability of truthfulness was increased by the
MR. KING [defense counsel]. Objection to circumstances that a Black person was testifying
the racial connotation of individuals. against another Black person. The trial judge’s
overruling of defense counsel’s objection assured
THE COURT. Of course I’ll instruct the jury the jury that the Court accepted the propriety of
now they shall not take into consideration
this argument.
to any extent and use that against any indi¬ In United States ex rel. Haynes v.
vidual race, color, creed makes no difference
McKendrick, 481 F.2d 152 (2d Cir. 1973), this
whatsoever. You may continue.
Court ruled that racial remarks in a prosecutor’s
summation can constitute a violation of a defen¬
dant’s right under the Due Process Clause to a
fair trial. Judge Oakes’ opinion drew upon the
’ Later in his summation the prosecutor explained
line of fair trial cases beginning with Moore v.
that in characterizing Officer Dorman as someone who
Dempsey, 261 U.S. 86 (1923), and the line of equal
goes “by the book,” he meant that she follows correct
procedure for an undercover officer in insisting that she protection cases beginning with Strauder v. West
has the purchased narcotics in her hands before she pays Virginia, 100 U.S. 303 (1879), and noted that
out any money. (Tr. at 371-72). when racial prejudice is injected into a criminal
 Group Justice Versus Individual Justice: Category Problems 153

trial, “the due process and equal protection basis of any adverse inference, any reterence to it
clauses overlap or at least meet. ...” by a prosecutor must be justified by a compelling
The Office of the Monroe County District
state interest. The issue in this case is whether the
Attorney, which has intervened to uphold peti¬
racial remarks, even if not overt racial slurs, were
tioner’s conviction, contends that the racial
sufficiently justified to be countenanced.
remarks of the prosecutor, while “imprudent,”
were not racial slurs. The remarks in Haynes Since the prosecutor in this case did not spell
involved racial slurs, and the District Attorney out his reasoning, one is left to consider what
possible lines of reasoning might support a valid
argues that only remarks of that category are
appeals to racial prejudice that can render a con¬ argument that the testimony of Officer Dorman
viction invalid under the Fourteenth Amendment. is entitled to some degree of enhanced probability
Neither Haynes nor the lines of authority on of truthfulness because her race is the same as
which it drew set the constitutional limits for the defendant’s.
improper prosecution argument at racial slurs. The analysis may begin by recognizing the
Race is an impermissible basis for any adverse obvious fact that from any group, racial or oth¬
governmental action in the absence of compelling erwise, some persons called as witnesses will tes¬
justification. When a prosecutor’s summation tify helpfully to a defendant and some will testify
includes racial remarks in an effort to persuade
accusingly.^ It may well be that testimony is more
a jury to return a guilty verdict, the resulting
frequently helpful than accusing when the testi¬
conviction is constitutionally unfair unless the mony is given within group lines (witness and
remarks are abundantly justified. To raise the defendant members of the same group) than when
issue of race is to draw the jury’s attention to a testimony is given across group lines (witness and
characteristic that the Constitution generally com¬ defendant not members of the same group). Two
mands us to ignore. Even a reference that is not
circumstances would seem to support this thesis.
derogatory may carry impermissible connotations,
First, alibi and character witnesses normally come
or may trigger prejudiced responses in the listeners
from those with whom the defendant spends time,
that the speaker might neither have predicted nor
intended. and there is a reasonable likelihood that members

This is not to say that every race-conscious of his group are a disproportionately large seg¬
ment of his friends and associates. Victims and
argument is impermissible. Indeed, in Haynes
defense counsel, with apparent court approval, bystander witnesses who testify accusingly are less
had attacked identification testimony on the likely to be drawn disproportionately from the
ground that the eyewitness, being White, was defendant’s group (though for some crimes, vic¬
unlikely to be able to discern distinguishing char¬ tims may be). Second, when testimony is given
acteristics of the face of the criminal, who was
within rather than across group lines, the inci¬
Black. These remarks were race-conscious, but dence of helpful testimony may be further
neutral, since presumably an argument could be
increased because of lying. Of course, of all wit¬
made with equal force that a Black eyewitness nesses who testify helpfully, some percentage are
would have difficulty discerning the features of a
White criminal. And there is some basis for lying, reflecting at least whatever extent mendacity
is prevalent in the total population. But in the
accepting the validity of both contentions.
category of helpful testimony within group lines,
Chance, Goldstein & McBride, Differential Expe¬
an extra increment of lying might occur because
rience and Recognition Memory for Faces, 97 J.
Soc. Psych. 243 (1975); Malpass, Racial Bias in of the tendency of some small percentage of the
Eyewitness Identification, 1 Personality & Soc. members of any group to lie in an effort to be

Psych. Bull. 42 (1974); Malpass & Kravitz, Rec¬

ognition for Faces of Own and Other Race, 13 J.
Personality & Soc. Psych. 330 (1969); Shepherd,
Deregowski & Ellis, A Cross-Cultural Study of
Recognition Memory for Faces, 9 Int’l J. Psych. 2 The percentage of each group that testifies accus¬
205 (1975). But given the general requirement that ingly may not be the same, but the differences do not
the race of a criminal defendant must not be the matter to this analysis.
154 JUSTICE AND THE LEGAL SYSTEM

helpful to a fellow member of their group. ^ within and across group lines, but a comparison
The prosecutor in this case might have of the truthfulness of accusing testimony within
believed that both of these circumstances operate and across group lines.
to make the incidence of helpful testimony higher As with witnesses giving helpful testimony,
within group lines than across them, and con¬ some percentage of all witnesses giving accusing
versely that the incidence of accusing testimony testimony are lying. But when accusing testimony
is lower within group lines than across them. In within and across group lines is compared,
other words, if 100 instances are randomly another circumstance may well be at work that
selected where a witness and a defendant are mem¬ might affect the likelihood of credibility. This is
bers of the same group, and another 100 instances prejudice — the hostility of some few members of
are randomly selected where a witness and a defen¬ any group against members of a different group
dant are not members of the same group, the to such a degree that they are willing to accuse
percentage of witnesses giving accusing testimony falsely. It may well be that prejudice increases the
may well be lower in the first 100 than in the probability of lying when accusing testimony is
second 100.
given across group lines to a greater degree than
If this is what the prosecutor believed (and when accusing testimony is given within group
was urging the jury to believe), the premise might lines. To whatever extent this is so, the converse
be sound, but the conclusion— that Officer Dor¬ effect would be to increase the probability of
man’s accusing testimony is more likely to be cred¬ truthfulness when accusing testimony is given
ible because given within group lines rather than within group lines to a greater degree than when
across them— is completely illogical. All the prem¬ accusing testimony is given across group lines.
ise indicates is that testimony within group lines, If the prosecutor was basing his argument
compared to testimony across group lines, is less on this reasoning, his argument might have some
likely to be accusing. But this premise provides slight logical validity,'* but is nonetheless consti¬
no basis whatever for reaching any conclusion as tutionally impermissible for two reasons. First,
to the likelihood that accusing testimony within the degree of validity is highly uncertain and may
group lines is credible. Specifically, it provides no well be extremely slight. It is one thing to permit
logical basis for concluding that accusing testi¬ race-conscious arguments to be made when com¬
mony within group lines is more likely to be truth¬ paring the reliability of facial identifications
ful than accusing testimony across group lines. within and across racial lines, but quite another
Reduced frequency of occurrence is no indicator to permit such arguments with respect to com¬
of credibility. The pertinent analysis is not a com¬ parative rates of false accusations. While there is
parison of the incidence of accusing testimony some reason to believe that identifications are

3 There is no need in this case to decide whether * In some contexts, another phenomenon may be
the incidence of such helpful lying within group lines is at work that would lessen or even totally undercut any
of sufficient certainty and extent and sufficiently race- logical validity the prosecutor’s argument might other¬
neutral to be the basis of a permissible argument by a wise have. This is the tendency among members of some
prosecutor that helpful defense testimony should be dis¬ groups to be so personally embarrassed by wrongdoing
believed because a defendant and his witnesses are mem¬ by members of their group that they are overly quick
bers of the same group. Whatever the infirmities of such to condemn. To whatever extent that phenomenon might
a summation . . . , it poses issues different from those increase the rate of mistaken accusations within group
that arise in this case where the prosecutor argues that lines compared to accusations across group lines, it
accusing testimony should be believed because the defen¬ would be expected to manifest itself only in circum¬
dant and a prosecution witness are members of the same stances where the witness was perceiving ambiguous
group. To the extent that the jury may have taken the events and too quickly and erroneously concluding that

prosecutor’s remark as a veiled suggestion to disbelieve wrongdoing was occurring. It is difficult to imagine that
this phenomenon would have any bearing on the relative
Singletary’s helpful testimony, the vice of injecting
improper racial considerations into an assessment of incidence of deliberately false accusations within group
lines compared to deliberately false accusations across
Officer Dorman’s accusing testimony was compounded,
as Judge Kearse’s concurring opinion points out. group lines.
 Group Justice Versus Individual Justice: Category Problems 155

more reliably made within racial lines than across

cers of her department would falsely accuse a
them, there is no comparable basis for confidence
Black defendant, such an outrageous circum¬
in comparisons about false accusations. A race¬ stance surely cannot be a constitutionally valid
conscious argument is not constitutionally per¬ basis for enhancing the credibility of this witness
missible unless the basis for it has a sufficiently for the prosecution.
high degree of reliability to warrant the risks inev¬ Furthermore, to whatever extent prejudice
itably taken when racial matters are injected into increases the incidence of false accusing testimony
any important decision-making. A major risk here
across compared to within group lines, this cir¬
is that the jury will totally fail to follow the narrow
cumstance supports an argument that is not race-
reasoning process that lends any possible validity neutral. As the intervenor acknowledged at oral
to the prosecutor’s argument and instead simply argument, it is inconceivable that a prosecutor
be influenced adversely to the defendant because
would argue to a jury that one reason to believe
of the prosecutor’s reference to his race. A further the accusing testimony of a police officer is that
risk is that the jury will wrongly conclude that both the officer and the defendant are White.
the argument draws its validity from the previ¬ These considerations lead to the conclusion
ously discussed premise concerning the reduced that the prosecutor’s argument is constitutionally
incidence of accusing testimony within group impermissible. It invokes race for a purpose that
lines. If the jury accepts that reasoning, it will be is either illogical or of very slight and uncertain
accepting an argument that is, as previously logical validity and does so at a distinct risk of
pointed out, completely illogical. stirring racially prejudiced attitudes. The evils of
There is a second reason for disallowing the racial prejudice lurk too frequently throughout the
argument, to whatever extent it might have logical administration of criminal justice. They must be
validity. The increased credibility of accusations condemned whenever they appear. The Consti¬
within group lines compared to accusations across tution forbids the racial remarks in the summation
group lines results, if at all, from the degree to
that preceded petitioner’s conviction.
which some members of one group are so prej¬ The District Attorney contends that if con¬
udiced against another group that they are willing stitutional error occurred, it was harmless beyond
to make false accusations. When a prosecutor a reasonable doubt. See Chapman v. California,
argues for enhanced likelihood of credibility 386 U.S. 18 (1967). As both the prosecutor and
because the accusation is within group lines, he defense counsel recognized, the case against the
is asking the jury to give his witness some extra defendant depended on the credibility of Officer
credit simply because the witness is lacking the Dorman as opposed to the defendant’s witness,
prejudice that might prompt a witness of another Singletary. The corroborating details of the pro¬
group to accuse falsely. The credibility of the secution’s case confirmed a narcotics sale and peti¬
state’s witness should depend on an assessment of tioner’s presence at the apartment house, facts he
many pertinent factors, but the state should not did not contest, but did not significantly prove
be entitled to have its witness’s credibility that petitioner was the seller. When the District
enhanced simply because they are not members Attorney contends that the case against the peti¬
of a group that might be prejudiced against the tioner was strong, he is assuming the truth of
defendant.
Officer Dorman’s testimony. A constitutional
This point can best be appreciated by con¬ error that taints the proper assessment of her cred¬
templating the minor premise the prosecutor ibility cannot be considered harmless.
would have to explain to the jury in order to The judgment is reversed and the cause
develop his reasoning fully. If a Black officer is remanded with instructions to issue a conditional
logically entitled to any enhanced credibility when writ discharging the petitioner from custody
testifying against a Black defendant, it can only unless the District Attorney within sixty days files
be because White police officers are more likely with the District Court a statement of intention
than Black police officers to give false accusing to retry petitioner and thereafter proceeds to
retrial with reasonable promptness.
testimony against a Black defendant. If the dif¬
ference is true at all, it presumably is true for all
KEARSE, Circuit Judge (concurring):
police departments, including Officer Dorman’s. I concur in the result and in most of Judge
If to the prosecutor’s knowledge some White offi¬
156 JUSTICE AND THE LEGAL SYSTEM

Newman’s opinion but would add the following In Rose v. Mitchell, 99 S.Ct. 2993 (1979),
observations. Mr. Justice Blackmun said:
The prosecutor urged the jury to believe the For we also cannot deny that, 114 years after
testimony of Officer Dorman because she was the close of the War Between the States and
Black, the defendant was Black, and Dorman’s
nearly 100 years after Strauder, racial and
testimony was accusatory. The immediate impli¬ other forms of discrimination still remain a
cation of the prosecutor’s statement was twofold. fact of life, in the administration of justice
First, it suggested that an accusation by a Black as in our society as a whole.
witness is more likely to be truthful if made
This was not a startling or unusual state¬
against a Black defendant than if made against a
ment. Similar pronouncements have issued on
White defendant. Second, it suggested that tes¬
countless occasions from the media, the pulpits
timony of a Black witness with respect to a Black
of every church, and the courts; and, in many
defendant is more likely to be truthful if it accuses
instances, the police have been the special target
him than if it supports him.
of criticism. See, e.g., J. Decker, Police Sensitivity
In my view, therefore, the prosecutor’s and Responsiveness to Minority Community
appeal not only may have led the jury to credit Needs: A Critical Assessment, 12 Valparaiso Law
unduly Officer Dorman’s testimony, but also may Review 467 (1978). It is unlikely that any juror
have led the jury to believe that Singletary, the could have avoided the influences of these con¬
sole witness in support of the defendant, was more stant reiterations.
likely to be lying— not because he and the defen¬ In the light of all this what calumny did the
dant were friends but because he and the defen¬
young prosecuting attorney utter which deprived
dant were Black. . . . petitioner of his constitutional right to due proc¬
The overall effect of the prosecutor’s remarks ess? He suggested that the jury might take into
was to imply that Black persons, as contrasted consideration the fact that petitioner and the
with White persons (the district attorney’s office police witness were high school classmates and
admits it is inconceivable that a prosecutor would members of the same race. The majority say that
make a statement of this kind about a White wit¬ this attempt to refute the defendant’s claim of
ness and a White defendant), can be expected to frame-up and eliminate any possible claim of
allow racial considerations to affect their testi¬ racial prejudice created a “distinct risk of stirring
mony. I suspect that this invidious premise, rather racially prejudiced attitudes.” I disagree. Unless
than the level of incidence of intra-group accu¬ mere reference to the obvious fact that both peti¬
tioner and the police officer were black is prej¬
sation, is what was in the prosecutor’s mind when
he said, “If she’s lying she’s lying against a mem¬ udicial per se, but see Iva Ikuko Toguri D’Aquino
V. United States, 192 F.2d 338, 371 (9th Cir. 1951),
ber, a person that [sic] is black,’’ and what he
the prosecutor’s remarks were not of such a nature
conveyed to the jury when he urged, “You use as to foment racial prejudice against anyone.
your common sense to think about’’ whether
It may be that if this were an appeal from
“she’s lying against another black person.” one of our own district courts, we would find the
VAN GRAAFEILAND, Circuit Judge, dis¬ prosecutor’s comments to be a digression from
senting: the proof. However, “not every trial error or infir¬
mity which might call for application of super¬
In voting to reverse, my two colleagues set
visory powers correspondingly constitutes a
themselves against a competent and eminently fair
‘failure to observe that fundamental fairness
New York State Supreme Court Judge, five
Appellate Division Judges, the Chief Judge of the essential to the very concept of justice.’” Donnelly
V. DeChristoforo, 416 U.S. 637 (1974). Unless
New York Court of Appeals, and a United States
there has been a “denial of fundamental fairness,
District Court Judge, all of whom were satisfied
shocking to the universal sense of justice,” Betts
that petitioner had a fair trial. Although I agree V. Brady, 316 U.S. 455 (1942), this Court should
completely with my colleagues that appeals to not interfere with the state’s conduct of a criminal
racial prejudice have no place in a courtroom, 1 trial. When such denials occur, proof of their
find no such appeal in this case. I therefore cast existence does not require erudite discussions of
my lot with the eight judges who felt the same such things as group lines, frequencies, and per¬
way. centages. 1 dissent.
 Group Justice Versus Individual Justice: Category Problems 157

Notes and Questions

1. McFarland was sentenced to a prison term of eight years to life for selling $450
worth of heroin to an undercover police officer. Does that sentence seem disproportionately
severe? The crime did not involve physical violence, such as rape or murder, or immediate
danger to others, such as arson, yet it received a sentence equal in severity to them. Does
the sentence reflect society’s attempt to take a hard line in the “war on drugs” more than
an attempt to mete out exact justice to McFarland?

Should McFarland be given the “benefit of the doubt” on the question whether the
prosecutor’s statements were unfair because of the stiff sentence? Note that the only evidence
against him is Officer Dorman’s testimony. She takes no significant personal risk: If the
jury decides that she lied, the only consequence will be that McFarland is acquitted and
not that she has any risk of being indicted for perjury. But if the jury decides she was
telling the truth— and if in fact she was lying — McFarland goes to prison for eight years
to life.

2. Judge Van Graafeiland, dissenting, said that “mere reference to the obvious fact
that both petitioner and the police officer were black” is not prejudicial per se. Do you
agree?
3. Judge Van Graafeiland also observes that he might have agreed with Judge Newman
had the case come to the Second Circuit as an appeal from one of the federal district courts.

A United States Court of Appeals, he argues, should be far more hesitant to “interfere
with the state’s conduct of a criminal trial” using the writ of habeas corpus.
His hesitancy stems from the fact that the federal government and the states function
as separate sovereign entities, except insofar as the Constitution of the United States imposes
restraints and obligations which states have agreed will bind them by virtue of their rati¬
fication of the Constitution. The cases Judge Van Graafeiland cites are those in which a
petitioner has asked a federal court to issue a writ of habeas corpus freeing the petitioner
from illegal custody by a state official. The federal writ of habeas corpus serves, amongst
other purposes, to commence an inquiry by a federal court into a claim of illegality in the
detention of the petitioner by a state.

Whether Graafeiland’s application of the law of habeas corpus to

Judge Van
McFarland’s conviction should persuade us is a complicated matter we shall not address.®
It is worthwhile, however, to note a theme found by one historian of habeas, which is

The writ’s greatness derives from its function of inquiring into the legality of an individual’s
confinement. Although the definition of ‘legality’ has changed to meet the demands of a
developing concept of liberty, the purpose of the writ has remained the same for several

5 See P. Bator, P. Mishkin, D. Shapiro, H. Wechsler, Hart and Wechsler’s The Federal Courts and
THE Federal System, ch. 10 (2d ed. 1973); R. Sokol, Federal Habeas Corpus, (2d ed. 1969).

* W. Duker, a Constitutional History of Habeas Corpus 3 (1980).

158 JUSTICE AND THE LEGAL SYSTEM

hundred years. Its purpose is neither to compensate the

prisoner for past injustice nor to
penalize the policeman or judge whose behavior gives rise
to the proceeding. Further it is
not concerned with the correction of all errors preceding
the challenged confinement. Rather,
the purpose of habeas corpus is to insure the integrity of
the process resulting in impris¬
onment. Although it is put into operation by a particular
prisoner, whose incentive is his
own release, its objective is institutional reform. Habeas
corpus is the structural reform
mechanism of the criminal justice system, functioning to
provide an avenue to vindicate
substantive rights.

4. Judge Newman agrees that some race-conscious arguments are permissible. In

Haynes, defense counsel attacked identification testimony on the
ground that an eyewitness,
being white, was unlikely to be able to discern distinguishing charact
eristics of the face of
the accused, who was black. Judge Newman reasoned that these race-c
onscious remarks
were neutral, since presumably an argument could be made with equal
force that a Black
eyewitness would have difficulty discerning the features of a White crimina
l.” Do you agree
with the reasoning?
What if an argument could not be made with equal force that a black eyewitne
ss would
have difficulty discerning the features of a white criminal? Suppose psycholo
gical and
sociological evidence demonstrated that black eyewitnesses are just as able as white
witnesses
to discern the features of a white criminal. Should that be relevant?
Suppose you are the attorney for a black who is accused of armed robbery. A white
eyewitness has testified for the prosecution that he saw your client from across the street
fleeing the scene of the crime. You are convinced that your client was not at the scene of
the crime, and that he is a victim of misidentification. If the psychological and sociological
literature shows that white witnesses are unlikely to discern distinguishing characteristics of
the face of a black person, why can’t you introduce such an argument to discredit the
prosecution’s witness? Is the argument race-conscious, hence prejudicial? If the scientific
literature does not show a comparable disability on the part of black witnesses, could you
bring up the point to impeach a white witness?
5. In the hypothetical in Question 4, assume the trial judge rules in your favor on the
general point that the race-conscious argument is permissible. Should you be allowed to
raise it for the first time during your closing argument? That is when Prosecutor Pappalardo
raised his own race-conscious argument in McFarland.
What is the race-conscious “argument” after all? Is it an argument? A presumption?
Doesn’t its argumentative validity depend upon its truthfulness? Isn’t the argument per¬
missible only if the relevant psychological and sociological literature supports the underlying
generalization that white witnesses have difficulty discerning facial characteristics of black
persons?
If we are talking about /<zct5— psychological characteristics that are or are not true of
persons — then how could the matter fairly be brought up in closing argument? During the
attorneys’ summation at the close of a trial, it is impermissible to bring up new evidence.
The summation is what its name implies: summation of and “fair comment” upon evidence
brought out at trial. Isn’t the proper time and place to introduce facts the trial itself and
not closing argument?
On the other hand, shouldn’t counsel be allowed in their closing arguments to appeal
to generalizations that “everybody knows”? The jury is, after all, supposed to use “common
 Group Justice Versus Individual Justice: Category Problems 159

sense.” Shouldn’t counsel be allowed to appeal to it?

6. Assuming we conclude that the generalizations are facts that must be introduced
into evidence, the proper way would be to put an expert on the stand — a sociologist or
psychologist — to testify about the generalization. Then opposing counsel could present
evidence rebutting the testimony of the expert. Or, opposing counsel could present evidence
that despite the generalization, this particular witness does not have the disability. For
example, the witness could be asked to look at the audience at the trial, then close his eyes
and describe the facial characteristics and differences between two black persons seated in
the audience.

Isn’t it fair that opposing counsel should get a chance to rebut a proposition based on
expertise, and to show that the race-conscious characteristic raised at trial does not happen
to be true for this witness?

Would it not have been much easier for Judge Newman to hold simply that race¬
conscious arguments can be made during closing arguments so long as the prosecutor, at
the trial, establishes through expert testimony the empirical and statistical soundness of the
race-conscious argument? Of course, “expert testimony” has a notorious reputation for
being unhelpful. Is it not true that you can often find an “expert” to assert any side of
any proposition?^
7. What argument does Judge Newman call “completely illogical”? What premises does
Judge Newman assign to the argument? Starting from these premises, is the argument
illogical? Does Judge Newman come to agree that the argument is logical? Shouldn’t Judge
Newman have attacked the premises? How? Does Judge Kearse attack them?
8. Why should the prosecutor’s reference to the defendant’s race influence the jury the
way Judge Newman imagines? Isn’t the jury looking at the defendant? Surely the jury isn’t
being told something new about the defendant by the prosecutor (unlike Rojas).
9. Judge Newman finds it “outrageous” to think that across-group police officers would
testify falsely. Isn’t he compelled to that conclusion by the very premises that he set up in
the first place, that across-group accusers might testify falsely to the same extent that within-
group helpers might testify falsely? Why, then, does he suddenly find the conclusion out¬
rageous when he focuses on the police, but not when he focuses on the likes of McFarland
and Singletary?
10. Was the state lucky that it lost this case on appeal? Suppose it had won on the

z According to John Langbein: “I sometimes serve as an expert in trust and pension cases, and 1 have
experienced the subtle pressures to join the team — to shade one’s views, to conceal doubt, to overstate nuance, to
downplay weak aspects of the case that one has been hired to bolster. Nobody likes to disappoint a patron; and
beyond this psychological pressure is the financial inducement.” Langbein, The German Advantage in Civil
Procedure, 52 U. Chi. L. Rev. 823, 835 (1985). Elaborating on the difference between the American system and

that practiced on the European continent, Langbein writes: “Experts help courts draw inferences based upon
specialized knowledge — for example, inferring speed from skid marks or paternity from genetic evidence. In any
legal system, courts will rely upon expert assistance in evaluating such evidence. Continental legal systems diverge
sharply from ours on how to select and instruct experts. In our system, adversary selection and instruction of
partisan experts is the overwhelmingly dominant pattern. In Continental systems, including the German, judicial
control of fact-gathering leads to court selection and instruction of neutral experts.” Langbein, Trashing The
German Advantage, 82 Nw. U.L. Rev. 766, 775 (1988).
160 JUSTICE AND THE LEGAL SYSTEM

ground that Prosecutor Pappalardo’s remarks were permissibly race-conscious.

Wouldn’t
that open the door for defendants in all future cases involving across-group
accusing police
officers to argue that the police officers are probably lying? Wouldn’t that hurt law-enfor
ce¬
ment much more than the single loss would ever hurt the state in the McFarla
nd case?
Does this explain why Judge Newman did not say, as he could, that McFarla
nd was
unconstitutionally deprived of the opportunity to test the truthfulness of Officer Dorman?
11. Imagine the following conversation between Pappalardo and his associates in the
District Attorney’s office prior to the McFarland trial:
PROSECUTOR PAPPALARDO. Obviously we’re going to put on an accusing witness
—
Officer Dorman and the defense is going to put on a helpful witness — probably his friend
Singletary. But our witness is a within-group accusing witness who is inherently more
credible. If McFarland wants a witness that would match ours in credibility, he’s going
to
have to call an across-group helpful witness.
ASSISTANT PROSECUTOR. But how can McFarland do that? If his friend Singletary
was there at the scene, he has to call Singletary. He can’t call somebody else. He can’t go
out and get a friend of his who is white and suborn him by inducing him to commit perjury.
He’s stuck with Singletary because Singletary was there.
PROSECUTOR PAPPALARDO. Fine. That’s McFarland’s problem. If Singletary were
white, McFarland would be better off. But he’s black, so McFarland is in trouble. We were
very smart to get blacks on the police force, and now we’re reaping the benefits of that
policy. Our arresting officer is black and we can tell the jury that they can rely on her
testimony because she is black and the defendant is black.
ASSISTANT PROSECUTOR. Is that a fair argument for us to make?

PROSECUTOR PAPPALARDO. It’s our job to argue as strongly as possible for conviction.
We just make our best arguments. The rest is up to the jury.

Has our imaginary Pappalardo given a complete and satisfactory answer to the Assistant
Prosecutor’s question?
12. Was justice done to the State? To McFarland?

Comment on Justice and Common Sense

The prosecutor in McFarland told the jurors: “You use your common sense to think
about that.” The “common sense” the prosecutor wanted the jurors to use — the argument
implicit in his appeal to “common sense,” but which he did not wish to spell out — suggests
the following propositions:

(1) Officer Dorman and McFarland were classmates (knew each other) in high school;
both are black.

(2) If you knew nothing about two people except that they were high school classmates,
you would bet that they feel well disposed toward each other; similarly, if you knew
nothing about two people but that they are “members” (already a loaded word) of the
same race, you assume they have a disposition not to make accusations against each
other of the sort Officer Dorman made against McFarland.
 Group Justice Versus Individual Justice: Category Problems 161

(3) The dispositions stemming from her two “memberships” — in McFarland’s high
school class and his race — affected Officer Dorman as she testified.

(4) Hence, Officer Dorman’s “memberships” enhance the credibility of her accusations
against McFarland.

Assuming these four propositions present a fair version of the prosecutor’s hidden argument,
we can learn several lessons about common sense by closely studying the propositions.

1. Ambiguity^

The propositions are riddled with ambiguity. In her concurrence Judge Kearse under¬
scores one: Did the prosecutor mean to say that the disposition not to make accusations
against a member of one’s own race affects only black people or people of all races? Would
it be better to substitute a different expression for “black people” — “people of any race
who have experienced oppression”? Judge Newman emphasizes a second ambiguity: Does
the disposition not to make accusations govern true accusations or false? And a third: Are
people less disposed to make accusations against members of the same race (feeling solidarity
with them), or more disposed (feeling threatened by their unlawful or shameful behavior)?
Can you think of any appeal to common sense that does not contain ambiguities? The
prosecutor in McFarland undoubtedly had the ability to resolve the ambiguities by spelling
out his argument. Yet a person may choose to maintain ambiguities for one of at least two
major reasons.
First, one might want to make an argument people resent acknowledging to be per¬
suasive. The prosecutor’s first ambiguity — black people versus people of all races — conceals
an argument of this sort. People hearing an explicit argument might very well act contrary
to feelings they would have had were the argument implicit. They seize the occasion of
explicit argument to show both themselves and others that they have resisted the argument.
Ambiguity allows one to make arguments people believe but do not like hearing. Perhaps
a good term for this is an insinuating argument.
Second, one might want to make an argument which must compete with an opposing
or collateral argument that also makes sense. Consider whether people are well or ill disposed
towards members of the same race who are an embarrassment. Both positions likely reflect
the real dispositions of a variety of people. They might even reflect dispositions in conflict
all at once within a single person. Yet the prosecutor’s ambiguity allows him to ignore
competing arguments.

2. Stereotyping

More troubling than the ambiguities in the prosecutor’s hidden propositions is the
implicit condition that we know nothing about Dorman and McFarland but certain stere-

* A good way to remember the difference between “ambiguity” and “vagueness” is to note that nearly
everyone’s first name is ambiguous. The names Paul and Dorothy refer ambiguously to many persons with those
names. There is nothing “vague” about a first name, but it is “ambiguous.” On the other hand, good examples
of “vagueness” are attributes, such as heavy, light, tall, short, wide, and narrow.
162 JUSTICE AND THE LEGAL SYSTEM

otypes high school classmate, black — about which common sense is supposed to
draw
conclusions. Some of us have fond feelings about the “idea” of “high school classmat
e.”
But others of us don t have such feelings, and we probably can recall
some high school
classmates whom we would rather not recall. Moreover, does fond feeling
about the idea,
assuming we have it, tell us about actual feelings we have toward individual classmat
es?
Does it hold up in every situation? Surely, class reunions are calculated to incite
such
feelings. But would the feelings matter much if the classmates were competing for
something
they both want? If the classmate had an official duty?
The crucial problem with “common sense” reasoning about single characteristics such
as high school classmate” or “black” is that it lulls us into believing we know something
about a person or situation which we do not, in fact, know. Officer Dorman may have
hated McFarland in high school. Or she may not have known him. She may be more
concerned with obtaining convictions of those she arrests than about racial affiliation. To
say that people have positive associations surrounding the word “high school classmate” is
not to say that they feel fond of this or that person who happens to be a classmate, especially
since reasoning according to the naked characteristic tells us nothing about the context in
which we are supposed to be judging the effect of the characteristic.
Even if the context is appropriate — and it is dubious whether membership in the same
high school class would affect an arresting officer one way or the other — the effect of most
characteristics is only statistical. Where it is the effect of a characteristic, not the characteristic
itself, which is at issue, then the best we can say is that occurrence of the characteristic
makes incidence of an effect likely. This statement might be enough to convince us of the
incidence of an effect on the basis of the occurrence of the characteristic. But we could
just as well insist on further information about the effect itself that would help us judge
whether or not the effect in fact follows as it does in the majority of the occurrences of
the characteristic.
So, we should want to know additional facts about the relationship between Dorman
and McFarland in high school, if the prosecutor really wants to get into it. To say they
were high school classmates is to pose a question rather than to give an answer. Yet “common
sense” works the other way.

3. Suppression of Conflict

Common sense assumes a “sense” that is “common.” Common sense assumes that
any conflict between two persons involves one person whose vision of justice and whose
behavior accord with the vision and behavior of the great mass of right-thinking people,
and another whose vision and behavior do not. Often — often enough to cast doubt on the
utility of the assumption — conflict results from competing visions of justice, each held by
large, but not dominant, masses of people. It may be valid to speak of “common senses”
in a vast, complex and heterogeneous society such as ours, but surely not “common sense,”
at least not in cases which lead to sustained conflict which cannot be resolved without
litigation. One might even conclude that cases in which it is valid to speak of a single
“common sense” get resolved short of litigation, so that every reported opinion deals with
a conflict which common sense failed to resolve. The lawyer’s expertise takes over, one
might say, where common sense fails.
 Group Justice Versus Individual Justice: Category Problems 163

Coda

The three characteristics of “common

sense” — ambiguity, stereotyping, and suppression
of conflict — share a theme in common. The appeal to “common sense” is a rhetorical
device by which people making arguments at once refuse to present further information
about persons or events and either mask or excuse the refusal. “Common sense” can be
ignorance applauding itself. It is thinking according to stereotype rather than real deeds
and actual character. It suppresses the individuality of the persons and events whose “char¬
acteristics” common sense asks us to evaluate. Instead of learning what actually animated
Officer Dorman, we are content to speculate about her propensity to lie because she has
the same race as McFarland or because they were high school classmates.
On the other hand, we cannot avoid using common sense arguments. Every description
of a person or event is stereotype. The purpose of description is to place the person or
event into categories which the listener knows from common experiences have nothing to
do with the described person or event. Each person or event is descriptively unique only
up to the intersection of many such categories. Persons and events cannot be descriptively
unique in the way they may possibly be unique in reality. We have juries precisely to give
trials a good dose of this sort of common sense. The classic justification for having juries
is to inject community standards of sense and reasonableness into the adjudicatory process.
The evil of the appeal to common sense, therefore, cannot lie in the common sense,
since common sense is an inevitable component of argument. Is not the evil of the appeal
to common sense the appeal itself, since the purpose of the appeal is to stop listeners from
looking further for descriptive categories, to distract them from difficulties hovering around
the margin of a problem, to present hidden arguments, or to avoid dealing with opposed

and collateral arguments? A juror may already know something based on “common sense,”
but as soon as an attorney at trial explicitly appeals to this “common sense,” is there not
danger that it will be legitimated and elevated beyond the point of simply reflecting mass
thinking? Might it not be elevated to the point where it reflects mass unthinking?

People V. Thomas
514 N.Y.S.2d 91

Supreme Court, Appellate Division,

Second Department

April
1987
,KOOPER and SULLIVAN, JJ.
Phillip L. Weinstein, New York City (Cath¬
erine Grad, New York City, of counsel), for appel¬ MEMORANDUM BY THE COURT.
lant.
Appeal by the defendant from a judgment
Dexter Thomas, pro se.
of the Supreme Court, Kings County (Schwartz-
Elizabeth Holtzman, Dist. Atty. (Barbara D. wald, J.), rendered January 4, 1984, convicting
Underwood, Rosalyn H. Richter, Brooklyn and him of criminal possession of a weapon in the
Richard J. Cutler, New York City, of counsel), third degree, upon a jury verdict, and imposing
for respondent. sentence.

Before WEINSTEIN, J.P., and RUBIN, ORDERED that the judgment is reversed, as
164 JUSTICE AND THE LEGAL SYSTEM

a matter of discretion in the interest of justic if three white males jumped out of a green Ply¬
e,
and a new trial is ordered.
mouth Volarie [5/c] in this neighborhood and ran
The defendant, a black man, was arrested up to you you might tend to think these are not
by three white undercover police officers after they muggers, these could be police officers.” Finally,
approached him on the street in a predominantly in one of her concluding summation comments,
black and Hispanic neighborhood and observed the prosecutrix again urged the jury to consider
him place his hand on the butt of a gun secreted that when the defendant “saw these three white
in his waistband. The defendant was subsequently guys running up to him ... he was not holding
charged with criminal possession of a weapon in on to his gun or trying to make them think it
the third degree. At the trial, the defendant took
was a gun or knife to protect himself.” The defen¬
the stand in his own behalf and testified that he dant was subsequently convicted of criminal pos¬
found the gun in a nearby playground and picked session of a weapon in the third degree and now
it up with the intention of discarding it. He further appeals. We conclude that the aforementioned
testified that when the undercover officers — who remarks deprived the defendant of a fair trial and
had not identified themselves — approached him, reverse.
he believed them to be muggers and placed his
The inference to be drawn from the prose¬
hand on the weapon to discourage them from
cutrix’s thematic references to the officers’ race is
pursuing him. Moreover, although the officers tes¬
that a black man in a black neighborhood cannot
tified that they were wearing badges around their
conceivably be the victim of a crime committed
necks during the arrest, the defendant testified
by a white man. Such an appeal to the jury can
that he observed no badges and that it was only
serve no purpose other than to arouse racially
after the officers had handcuffed him that he dis¬
covered they were policemen. prejudiced attitudes and to undermine the jury’s
dispassionate and objective consideration of the
The defendant’s principal defense, as evidence adduced at trial. Indeed, as the United
charged to the jury by the court, was the conten¬
States Court of Appeals for the Second Circuit
tion that his possession of the weapon had been
temporary and innocent. Nevertheless, the pro¬ has aptly observed, “[ejven a reference that is not
secutrix, both in her cross-exam.ination of the derogatory may carry impermissible connotations,
defendant and subsequently in summation, or may trigger prejudiced responses in listeners
repeatedly sought to impeach the veracity of the that the speaker might neither have predicted nor
defendant’s contention that he believed the arrest¬ intended” (^McFarland v. Smith, 611 F.2d 414,
ing officers to be muggers by referring to the 417). This court, moreover, has repeatedly con¬
officer’s race. The prosecutrix first asked defen¬ demned, as divisive and inimical to both demo¬
dant, “[w]hen you saw two white guys with cratic and logical principles, arguments which
badges hanging around their necks jump out of encourage the jury to weigh the evidence by con¬
an unmarked car, is it your testimony that you sidering the race of a particular witness. As we
thought they were muggers?” Continuing, the stated nearly a quarter century ago, “[t]he vice
prosecutrix again stressed the race of the officers
of such an argument is not only that it is predi¬
by asking defendant what he did when he “saw cated on a false and illogical premise but more
these two white police officers jump out of an
important it is divisive: it seeks to separate the
unmarked car.” She then asked the defendant racial origins of witnesses in the minds of the jury,
“[h]as it happened before that three white guys and to encourage the weighing of evidence on the
in an unmarked police car pulled up to you and
basis of racial similarity or dissimilarity of the
jumped out and jumped you and knocked you
witnesses. The argument offends the democratic
down to the ground.” The prosecutrix further pur¬
sued this line of inquiry by asking the defendant, and logical principle that race, creed or nation¬
ality, in themselves, provide no reason for believ¬
“[i]s it your testimony that you have been mugged
by three white guys in this neighborhood?” and ing or disbelieving a witness’ testimony.” People
V. Hearns, 18 A.D.2d 173.
questioning whether he believed “that these three
white guys” were going to shoot him. Thereafter, The prosecutrix’s comments impermissibly
in her summation, the prosecutrix returned to this encouraged the jury to weigh the credibility of
theme, arguing that, “I would submit to you that the defendant’s testimony by considering the race
 Group Justice Versus Individual Justice: Category Problems 165

of the arresting officers, and, accordingly, we con¬ case, a review of the errors in the interest of justice
clude that the judgment of conviction must be is warranted.
reversed. Although the defendant failed to register
Finally, in light of our disposition, we need
objections to the prosecutrix’s comments in this not address the defendant’s remaining contentions.

Notes and Questions

1. The jury in Brooklyn convicted Thomas of criminal possession of a weapon in the

third degree, under New York Penal Law § 265.02. The Grand Jury had indicted Thomas
under Subdivision Four — possessing a loaded firearm. Thomas apparently did not contest
three major premises or, “elements,” of the crime: that (1) he was in possession, (2) of a
firearm, (3) that was loaded. He testified instead that “he found the gun in a nearby
playground and picked it up with the intention of discarding it.” Thomas’ trial lawyer knew
that the judge would instruct the jury to acquit Thomas if they found his possession of the
weapon to be “temporary and innocent.”’ To be guilty of criminal possession, judges in
New York have reasoned, one must intend to possess the weapon illegally — to keep it
indefinitely and for the reason that it is a weapon. Intention is a fourth element of the
crime, the sole element Thomas contested.
While Subdivision Four does exempt possession of a loaded firearm in the home or

place of business, it says nothing about “temporary and innocent” possession— nothing
about the element of intention.” Though the statute nowhere mentions “intention,” every
judge in the United States would read it into the statute. Legislators presumably did not
use the word, because they know how judges read statutes. One simply cannot understand
what legislators mean to say in statutes without referring to a host of rules, canons and
traditions judges have created in the course of reading and enforcing statutes. Lawyers find
these rules, canons and traditions in opinions such as Thomas, but also in the unwritten
lore of litigation. If legislators object to a rule, canon or tradition, then they must explicitly
disavow it; otherwise judges will assume that the legislators do not object to (or even

’ See People v. Pendergraft, 50 A.D.2d 531, 374 N.Y.S.2d 669 (1975) (trial judge must charge jury on the

justification of ’’temporary and lawful" possession even when defense doesn’t request the charge).
10 See People v. La Pella, 272 N.Y. 81, 4 N.E.2d 943 (1936). Though La Pella says that the defense is a

“matter of policy,” courts have recently noticed that the “innocent nature of the possession negates both the
criminal act of possession and the intent with which the act is undertaken when intent is an element of the crime.”
People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 97, 464 N.E.2d 463 (1984). Does the change in
reasoning matter?
11 It also says nothing about exempting possession of a firearm which is licensed, another instance of
“innocent,” if not “temporary,” possession. The licensing statute. New York Penal Law § 400.00, does not explicitly
shield licensed possessors from § 265. However, Subdivision 17 of § 400.00 provides that § 265 shall not apply to
an offense which also constitutes a violation of § 400.00 by a person holding an otherwise valid license.
166 JUSTICE AND THE LEGAL SYSTEM

support) their perpetuating the rule, canon or tradition.

Even where legislators do disavow a rule, canon or tradition, judges
have ways of
resisting— of softening or transforming— the disavowal. After all,
legislators depend on
judges to enforce their statutes. Beyond confirmation of judges who will be faithful to
their program, legislators can do little to ensure enforcement of statutes judges
consider
abhorrent. Since judges in the United States tend to be drawn from the same
political strata
as legislators, judicial resistance tends to be confined to extraordinary legisla
at moments of crisis. tion enacted

2. Was Thomas
testimony that he believed the undercover officers to be muggers
relevant to his defense that his possession of the gun was “temporary and innocent”?
(Hint:
Would a person whose possession of a weapon begins as “temporary and innocent” sub¬
sequently be permitted to use the weapon? If so, under what circumstances?’^ If the questions
the prosecutor directed to Thomas about his testimony were not relevant to undermining
the theory of the defense, could the questions have nonetheless been relevant? To what?
(Hint: Who is the defense’s chief witness? How can the jury assess the credibility of that
witness?)
3. Thomas subjected himself to a blistering cross-examination when he took the witness
stand.’'* Note how cleverly the prosecutor asked him leading questions.’® She asked, for
example:

Has it happened before that three white guys in an unmarked police car pulled
up to you and jumped out and jumped you and knocked you down to the ground?

Wasn’t this a loaded question? Isn’t the prosecutor supposed to try to trip up Thomas, to
show the implausibility of his testimony, to convince the jury he is lying? Is it her job to
do that? Or, does a public prosecutor have responsibilities different from those of a private
attorney — responsibilities to Thomas?
4. Suppose that all twelve persons on the jury in the Thomas case were black. Could
one then say that the prosecutor appealed to racism?

’2 The fact that legislatures depend on courts for enforcement of statutes has led one legal theorist to assert
that statutes are mere suggestions— or starting-points— for the real creation of binding legal norms, which takes
place in the courthouse during litigation, not in the legislature enacting statutes. See J. Gray, The Nature and
Sources Of The Law (1909).

’3 Amazingly, no case in New York so far has decided this question. A New York court has held that unlawful
possession includes possession for the purpose of self-defense, but only incidental to disarming an assailant in
the course of a fight. See People v. Pendergraft, 50 A.D.2d 531, 374 N.Y.S.2d 669 (1975). Thomas’ incident was
different. (How?) As one studies-and-practices law (they always go together) one meets up with lots of questions
that seem terribly important and screamingly obvious, to which neither statutes nor case-law supplies an answer.
It is this experience, more than volumes of jurisprudence, which exposes the artificiality of the positivist claim
that law is the command of the sovereign.
Thomas did not have to. In a criminal trial, the defendant has the right to remain silent and the prosecutor
cannot argue to the jury that the defendant’s silence should count against the defendant. (Though it may seem
obvious, it’s worth pinning down exactly why Thomas took the stand.)
On cross-examination, an attorney is entitled to ask leading questions. This gives cross-examination more
“bite” than direct examination. On the other hand, cross-examination is constrained: A witness can only be cross-
examined as to testimony that came up in direct examination.
 Group Justice Versus Individual Justice: Category Problems 167

5. In McFarland Newman said that a race-conscious argument about the reliability

of identification was permissible, because it works both ways. Suppose in Thomas an
unmarked police car in a white neighborhood pulled up to a white pedestrian who happened
to have a concealed gun, and three blacks jumped out of the car. Suppose the white pedestrian
is charged with unlawful possession of a firearm, and his defense is that he thought the
three blacks were muggers. In fact, they were police.

(a) Could the prosecutor fairly argue that the defendant had no substantial basis
for assuming that the three officers were muggers?
(b) Could the defendant fairly point out to the jury that the three men who jumped
out of the car were blacksl Or would that be a race-conscious argument like the one
in Thomas, hence unconstitutional?
(c) Would the defendant’s argument — that the three men seemed to be muggers —
be at all convincing if the defendant were barred from pointing out that the three men
were blacks? If your answer is “no,” then what is racist about the argument?
(d) Does the element of racism consist in the fact that it is unlikely that three
blacks jumping out of an unmarked car in a white neighborhood are police officers,
whereas it is likely that three whites jumping out of an unmarked car in a black
neighborhood are police officers? If your answer is “yes,” how could the system be
remedied? If it is a fact that most police officers are white, how could we ever get the
mirror-image case imagined in this Question? Further, isn’t the idea that we need mirror-
image equality just as unfair here as it was when we examined it in McFarland!

6. What, after all, was the prosecutor supposed to do in Thomas! Not mention that
the three police officers were white? She referred to the neighborhood experience; presum¬
ably, she was counting on the fact that the jurors at the trial were familiar with the very
neighborhood where Thomas was arrested. She made pointed references to “this neigh¬
borhood.” Wasn’t she counting on the knowledge of the jury that in this neighborhood, it
was indeed unlikely that three white men jumping out of a green Plymouth automobile

would be muggers? And what about the green Plymouth? Wouldn’t most people in the
neighborhood be expected to know what kind of unmarked cars the police drive around
in? (Often the police department buys cars in large numbers and soon it becomes common

knowledge what kind of cars to “look out for” among street-wise people.) Isn’t the pro¬
secutor’s stress upon this neighborhood and three white guys and green Plymouth an attempt
to demonstrate that Thomas is not credible?
7. Recall that after McFarland we speculated that the prosecution might well have been
relieved that it lost the case. Do you think the prosecution in Thomas was relieved to lose?
If not, is it possible that there is a deep-seated dissimilarity between the two cases rooted
in the concept of justice? What would that be?
Consider what would change if instead of “black” and “white” in Thomas we sub¬
stituted the words “rich” and “poor.” Suppose three “poor” guys get out of a green Chevy
in a rich neighborhood and go up to a rich pedestrian who is carrying a concealed weapon.
The three poor guys turn out to be undercover police officers. The pedestrian defends on
the ground that he thought they were muggers. Should the defense attorney be barred from
arguing that the three guys who jumped out of the car appeared poor, and that the defendant
168 JUSTICE AND THE LEGAL SYSTEM

was rich? If not, why is the prosecutor barred from using race in Thomasl
Isn’t race
intrinsically part of the evidence she needs to demonstrate that Thomas
is lying? If so, in
what sense is race part of the evidence? That black persons lie (as in McFarla
nd)^. Or, is
the prosecutor using race in a race-neutral way?
8. What does the court hold in Thomasl What is the court’s reasoning? Thomas
may
be prosecuted again. Suppose that the prosecutor in the second trial attempts to introduc
e
evidence about Thomas actual state of mind when the three undercover police
officers
approached him (assuming Thomas repeats his testimony that he thought the officers to be
muggers). Would the trial judge, attempting to follow the Second Department’s opinion,
permit the prosecutor to introduce such evidence? If she would not be permitted, could she
effectively contest Thomas’ claim? If permitted, what sorts of evidence?
9. Though Thomas’ trial lawyer had not objected to the prosecutor’s argument, the
Second Department overturned Thomas’ conviction using the well-established doctrine in
New York practice that the Appellate Division in its “discretion” may reverse a judgment
and grant a new trial “in the interests of justice,” even where the appellant has failed to
preserve error by lodging an objection.’* Is the case for ignoring the failure of Thomas’
attorney to object stronger or weaker than the case in Rojasl
10. The police arrested Thomas and the Grand Jury indicted him while an indictment
against him for attempted murder was pending. The second trial for criminal possession
was to take place while he was serving 12 and 1/2 to 25 years for the attempted murder.
Thomas’ sentence in the first criminal possession trial was 3 to 6 years not to run concurrently
with the sentence for attempted murder. Thomas pleaded guilty and admitted to criminal
possession before a second trial. The judge imposed a sentence of 3 to 6 years, this time
to run concurrently with the sentence for attempted murder.’^
11. A newspaper account of the Thomas decision reports that an official in the Brooklyn
District Attorney’s office, “who asked not to be identified, said the trial prosecutor, who
is black, made the comments to attack Thomas’ credibility and not to appeal to racial
prejudice.’”® If we knew the race of the trial prosecutor (not to mention her sex), might
that affect our view of the propriety of her questions and arguments about the race of the
undercover police officers? Should it? How might you use McFarland in answering these
questions?
12. Note well the anonymity towards which the actors in Thomas’ drama were striving.
The opinion does not name the officers. Thomas is “the defendant.” The prosecutor, at
least, is “the prosecutrix”, but even she doesn’t have a name. The spokesperson for the
District Attorney’s office asked the newspaper reporter not to identify her. The opinion
itself is a “Memorandum by the Court,” not an opinion for the court signed by a single

’6 See Weinstein, Korn and Miller, New York Civil Practice— CPLR § 5501.11.
This information was obtained in a telephone conversation by one of the authors with Catherine Grad,
one of Thomas’ attorneys. New York Penal Law § 265.02 makes criminal possession of a weapon in the third
degree a class D felony. Articles 55 and 60 of the New York Penal Law .set out sentencing.
’8 Newsday, April 4, 1987 at p. 9, col. 2.
 Group Justice Versus Individual Justice: Category Problems 169

judge.” The court demands at least partial anonymity (respecting race) for the officers who
arrested Thomas.
Many participants in the legal system strive not to be visible to people outside the
system. Why? Recall that justice, not whom she weighs in the balance, is blindfolded.
Perhaps people ought to be “dispassionate and objective” (as the judges in Thomas wanted
the jury to be). But should they be anonymous?
13. Assuming the facts of Thomas, suppose the case occurred 50 years ago in the deep
South. Suppose that instead of the prosecutor wanting to bring out the fact that the three
men who jumped out of the car were white, the defendant wants to mention that fact. The
black defendant wants the jury to know that the three men were white because he would
then be able to show that he had a reasonable fear of physical brutality. Should a reviewing
court hold that any attempt by defense counsel to introduce the color of the three men who
jumped out of the car is racially prejudicial evidence and should be disallowed?
14. Was justice done to Thomas? To the People?

” Notice, as you read appellate opinions, when judges sign them and when they attribute them to the court
(“per curiam” or “memorandum by the court”). The tradition of opinions for the court signed by a single Judge
is American and recent. See J. Dawson, The Oracles of the Law 85-88 (1968).

Exercise

Imagine that you are representing a black defendant who is charged with aggravated
burglary (a felony) and receiving stolen goods (a misdemeanor). Suppose the prosecutor
makes an offer of proof of a Police Department Study of the neighborhood where the
crime took place; the study contains statistics of crimes according to race. You and the
prosecutor meet in front of the judge, out of the hearing of the jury. The judge asks you
if you object to the introduction of this evidence.
The relevant facts of your case are as follows. A burglary occurred in a poor-neigh¬
borhood television store; a television set was taken, along with cash out of the cash register.
The owner of the store was hit over the head and suffered a mild concussion. A man was
seen running out of the store carrying a large box. It was dark, and two pedestrians, on
the other side of the street, caught a glimpse of the man. The next evening, acting on a

tip, the police obtained a search warrant for your client’s apartment, knocked and entered.
They found your client watching television. The TV set was the one that had been stolen.
Your client said that, earlier that day, two men whom he had never before seen drove up
in a Cadillac and offered to sell him the TV set for $100. He had $90 in cash on him and
they accepted the $90 and gave him the set, which was boxed and brand new.
Your client was arrested for aggravated burglary and receiving stolen goods. The bur¬
glary charge is a felony with a five to ten year sentence. Receiving stolen goods is a
misdemeanor with up to six months in prison and a fine.
There is an evidentiary rule of inference in your jurisdiction. It says that possession
170 JUSTICE AND THE LEGAL SYSTEM

Of Stolen goods is prima facie evidence of the misdemeanor

of knowingly receiving stolen
goods to convict the defendant, unless he offers evidence to rebut
the inference. Another
rule says that possession of stolen goods is evidence that can be
taken into account in
determining whether the person in possession stole the goods.
Both eyewitnesses were called by the prosecution at the trial. One of
them said he
wasn t sure but he thought that the man running out of the store was white.
The other also
said he wasn t sure but he thought the man was black. Neither saw the
face or any identifying
characteristics, except that the man was of the same general height and build as
the defendant.
Your client told you that on the evening of the burglary he was asleep in
his apartment.
He had come home early from work and fallen asleep. He had no alibi witnesse
s.
In front of the judge, the prosecutor shows you the statistics she wants to introduce
into evidence. The statistics relate to crimes in the poor neighborhood only, and
of those
crimes, only burglaries. They show that over the past ten years:

(1) 85% of all persons arrested for burglary were black.

(2) 80% of all persons convicted for burglary were black.
(3) The neighborhood population as a whole is 50% black, 50% white.
(4) 95% of all persons arrested for burglary were poor (as defined by national poverty
standards).
(5) 90% of all persons convicted for burglary were poor.

The prosecutor argues that your client is poor (under the relevant definition) and black and
lives in the neighborhood. Since the two eyewitnesses disagree as to the race of the burglar,
the statistical evidence is offered to prove that the eyewitness who is more likely to be correct
is the one who said he saw a biack.
The first thing you ask the prosecutor is whether she has any more evidence that she
is going to introduce for the state. She says she does not. You then make a motion for a
directed verdict. You argue to the judge that the only evidence against your client consists
of the following: the two eyewitnesses who disagree with each other, the fact that your client
was found in possession of the stolen television set, the fact that your client lived in the
neighborhood and was in the neighborhood on the night in question, and the statistics that
the prosecutrix wants to introduce. Even if those statistics are introduced, you argue, there
is not enough evidence to satisfy the state’s burden of proving that this defendant committed
the crime beyond a reasonable doubt.

The judge denies your motion on the ground that your client’s possession of the television
set, coupled with the prosecution’s eyewitness and statistical evidence, are enough for the
jury to convict the defendant unless the defendant persuades the jury that his story — about
buying the TV set and being asleep at the time of the burglary — is true. You may, of course,
choose not to put your client on the stand, as is his right. But then, if the jury’s verdict
is for conviction, the judge will let the verdict stand as meeting the evidentiary test of guilty
beyond a reasonable doubt.

At this point, does it seem to you that the state’s statistical evidence is a crucial element
in the state’s case? That without it there may be insufficient evidence as a matter of law
to convict your client (i.e., that the judge ought to direct a verdict in your client’s favor)?
Whatever your conclusion, you know that it is important to keep the statistical evidence
out of the case.
 Group Justice Versus Individual Justice: Category Problems 171

How about asking the prosecutor the following question; “Do you intend to introduce
the statistics to show that one of the two eyewitnesses is lying?” While the prosecutor is
framing an answer to your question, the judge asks you why you are asking that particular
question. You reply: “Because if the statistics show that the likelihood of blacks committing
burglaries is 80% and whites only 20%, then the witness who said the burglar is white
should be given greater credibility. That witness, after all, is reporting a comparatively rarer
event!”
How do you think the prosecutor will reply to your question and to what she has just
heard you say to the judge? She might say; “No, 1 do not intend to introduce the statistics
to show which witness is telling the truth. My argument, judge, is simply that the two
eyewitnesses have cancelled each other out. They are both honest, they have both reported
what they saw, and they disagree. The only reason Tm introducing the statistic is to get at
the truth: was the man who robbed the TV store a black man or a white man? 1 want the

jury to know that, in this neighborhood, there’s an 80% chance, maybe a 90% chance,
that the burglar was a black man and a poor man, like this defendant.”
Has she completely answered the question you asked of her? Is it possible that one
witness actually saw a black man and the other witness actually saw a white man? What
does the word “actually” mean here? That the criminal was black (or white)? Or that the
witnesses actually “saw” a black (or white) man? Is it not possible that a certain prejudice
crept in to the vision of the eyewitnesses?
Is it not possible that, in dim light, one of the witnesses figured that he must be seeing
a black man and hence his vision played a trick on him — he actually saw that which he
theorized he would be seeing? Is it not possible, in other words, that the burglar was white,
and that one eyewitness saw him as white, and the other eyewitness’s theory got in the way
of what he was seeing so that he “saw” a black man?
But doesn’t this line of reasoning assume the very conclusion you want to prove? Isn’t
it just as possible that the burglar was black, one of the witnesses saw him as black, and
the other eyewitness had a theory that the criminal must be white so he saw the criminal
as white? Or is this not “just as possible”? What is the probability that, given an indistinct
criminal, people on the street would assume that he was black? Isn’t that probability related
to the generally known statistics about crime in the neighborhood? In other words, if there
is a preponderance of black crime in the neighborhood, then aren’t eyewitnesses likely to
be biased toward the black in “seeing” a fleeing criminal?
Are you happy with this conclusion? If in fact 80% of the burglaries in the neighborhood
are committed by blacks, then isn’t it reasonable to expect eyewitnesses to expect to see
blacks fleeing from TV stores? Why is this “prejudice”? Why isn’t it just the normal
distribution of probabilities in that neighborhood?
Are you now happy with this conclusion? Or do you now want to look at the original
statistics themselves? Could it be that many more blacks were arrested for crimes than whites

because the police “saw” blacks as more likely to be criminals and hence arrested them
more frequently? In other words, the very statistics that the prosecutor wants to use in this
case may be the result of a prejudicial selection process!
Look at the statistics again. Out of 100 persons arrested for burglaries, 85 are black
172 JUSTICE AND THE LEGAL SYSTEM

and 15 are white. But out of 100 convictions, 80 are black and 20 are white. Are
these
figures compatible? Yes, because the conviction rate overall is less than the arrest rate. You
might have, for example, 100 persons arrested for burglaries, with the following breakdown:
85 blacks arrested
15 whites arrested
48 blacks convicted
12 whites convicted
40 persons either acquitted or never prosecuted

What do these statistics say to you? Do they say any or all of the following propositions?

(1) Out of the 40 persons who were either acquitted or never prosecuted, 37 were blacks,
and only 3 were whites. This shows that the legal system is extremely fair to blacks.
(2) Only 48 out of 85 blacks who were arrested were convicted, for a conviction rate
of only 52%. In contrast, 12 out of 15 whites who were arrested were convicted, for
a conviction rate of 80%. This shows that the legal system is extremely fair to blacks.
(3) Police are much more suspicious of blacks than they are of whites, and are inclined
to arrest many more innocent blacks than they are inclined to arrest innocent whites.
This shows that the legal system is extremely unfair to blacks.
(4) If there is a constant chance — say, 3% — of innocent people being convicted, then
the higher the proportion of arrests to convictions, the more likelihood there is of
convicting innocent people. Since there is a higher proportion of blacks arrested per
conviction than whites, the system is extremely unfair to blacks.

(5) The police don’t “bother” whites unless they are pretty certain of criminal guilt.
But the police “bother” blacks routinely, leading to many more arrests of blacks. This
form of harassment, even if the blacks are eventually acquitted, shows that the system
is extremely unfair to blacks.

After you read the first two propositions, were you inclined to say that the system is
fair to blacks? Did reading the next three change your mind? Or did you come out even?
Now suppose the judge says to you: “Let’s take the state’s offer of proof item by item.
Do you have any objection to the introduction of statistics numbered (3), (4), and (5)?”
You have no objection; these appear neutral. (Should you have an objection?) Then the

judge asks you about statistic (1). “Yes,” you reply. “The fact that 85% of the people
arrested for burglary were blacks simply shows prejudice on the part of the police. Nothing
is proved by the fact that someone is arrested. Indeed, the next statistic shows that many
blacks who are arrested are ultimately let go. So that proves that arrest statistics are unre¬

liable.”
The prosecutor then says: “If I leave out the arrest statistics and only prove up the
conviction statistics, would you object to that? After all, conviction statistics are conviction
statistics. There is no disputing their reliability. If 80% of convicted burglars are black,
that means that 80% of burglars are black in this town— as proven by the highest authority
we have, namely, the court.”
Would you go along with the offer of proof of conviction statistics? Should you?
Suppose you object that group characteristics should not be attributed to individuals.
 Group Justice Versus Individual Justice: Category Problems 173

Even if blacks are more likely, in this neighborhood, to commit burglaries than are whites,
that doesn’t mean that this defendant committed a burglary. Right?
But don’t we always attribute group characteristics to individuals whenever we use
statistical evidence? Isn’t that what statistics do?
How about omitting all statistical evidence? “Statistics lie,’’ you might say to the court.
“Let’s only have real evidence, not statistical evidence!’’ What will the court say?
Shouldn’t the court say something like the following: There is no such thing as real
evidence. All evidence is fundamentally statistical. If an eyewitness sees Adams on the street,
the eyewitness’ testimony in reality is: “Whenever I see things on the street that bear a
likeness to people I know — a likeness that I’ve observed over many years of observing people
and drawing inferences — it usually happens that I am right when I identify those things as
people I know, although the probability changes depending upon how many characteristics
of those things that I am able to observe.’’ That’s just another way of assigning statistical
probabilities to observations.
What if you reply: All right. Judge, but in this case the statistics have the effect of
prejudicing the jury. By calling attention to race, the prosecutor might be signalling to the
jury that it is all right for the jury to vote the way their prejudices tell them to vote. I did
not object to the introduction of the statistic on poor people committing crimes, because
as to that statistic, it had no real prejudicial value — many of the people on the jury are
also poor But I do object to racial prejudice masquerading as statistics.
Yet you can well predict what the judge’s answer will be. The judge will remind you
of McFarland. In that case, race-conscious statistics that justifiably illuminated the evidence
were perfectly proper to introduce at trial, so long as probative value outweighed prejudicial
value. In the present case, since the statistic of convicted blacks is so high (80®7o), it helps
the prosecution’s case. The prosecution is attempting to show that the one eyewitness who
said that the man running out of the store was white was probably wrong. It is critically
important to the state to show that that eyewitness was probably wrong, because if the
eyewitness were probably right, then this defendant would have to be acquitted. Since the
evidence is critically important to the state, and since the evidence itself is not problematic
(it is based on actual convictions), and since the statistic is so high (80%), its probative
value far outweighs its prejudicial value, and hence it should be introduced into evidence.
How would you deal with McFarland here? Would you accept it and try a last-ditch
argument? It is no good to repeat an argument that you’ve already made. Nor to rephrase
a previous objection. Do you have any new arguments to make before the court rules on
the prosecutor’s offer of proof?
You have already objected to the arrest statistics. The prosecutor offers to leave those
out if you will accept conviction statistics. Can you find anything wrong with using conviction
statistics? Suppose the introduction of the conviction statistics in your case is the item that
tips the balance, resulting in your client being convicted. What will then happen to the
conviction statistics?
Suppose out of 100 persons convicted for burglary, 80 were black. Suppose this statistic
is introduced at trial, and your client is convicted. Now the statistic will have to be revised
for the next case. Now, out of 101 persons convicted for burglary, 81 were black. The
conviction percentage has gone up slightly; now it is 80.1%. If in the next case the statistic
174 JUSTICE AND THE LEGAL SYSTEM

is introduced and results in a conviction of a black defendant, the

percentage will go up
some more. It will keep going up after each conviction.
What s wrong with that? Shouldn’t the conviction percentage go up if more
convicted? blacks are

Recall our initial premise'. It is the very introduction of the conviction statistic
that
tips the balance against your client. In short, his conviction has been brought
about not
by any real-world fact about his own case, but by the statistic. The statistic will
keep going
up the more it is used, until it gets over 90% and starts approaching 95%. People
will
believe that blacks are increasingly committing more crimes. And yet there will be no real-
world evidence of such a proposition, because the accelerating conviction rate is a mere
artifact of the introduction of the previous statistics!
Thus, you can argue to the judge that the introduction of the statistic becomes a self-
fulfilling prophecy: Blacks are increasingly likely to be convicted for no reason other than
the fact that we started with a statistic and kept introducing it in trial after trial as the
statistic itself got higher and higher.
Suppose since this is, after all, an exercise — that the prosecutor agrees with your
argument! But now she reaches down deep and comes up with a last-ditch argument to
beat yours. She says: “All right, you’ve proven that if the statistic is introduced in this trial
and results in tipping the scales against the defendant, there is a danger that the new
statistic — the 80.1% statistic — will be used in the next case, and in the case after that, and
so forth. I concede Vadl future cases may become contaminated. I concede that future cases
could result in injustice due to the self-fulfilling prophecy that you have pointed out.
“But,” she continues, “we can cross that bridge when we come to it. As far as this
case is concerned, we took the statistic of 80% convictions out of the recent Police Depart¬
ment study of court records, and it has never been used before. It comes into this trial as
a pure, uncontaminated figure of 80%. Your objection, counselor, is based on your fear
of future trials. But you can have no objection to using the statistic in this trial, which is
the only trial that we’re talking about. So, I repeat my motion to allow me to introduce
the conviction-rate statistic into this trial.”
Now what do you say? Assuming that the prosecutor’s statement is accurate — that the
race-conscious statistic about burglaries has never before been used in a trial in this juris¬
diction — is there any way you can challenge her statement that the statistic is uncontami¬
nated? Is there any way you can argue that in fact the statistic already includes a self-
fulfilling prophecy? Think back to the argument that all real evidence is only statistical
evidence. Think back to the argument that jurors carry around in their heads certain
“common sense” notions that are built up over years of observations of real-world data.
Is there a way you can argue that what apparently is the most objective of statistics — the
conviction rate of defendants according to race — is not as objective as it appears?
 175

Group Justice Versus Individual

Justice: Equality Problems
CHAPTER FIVE

5.1 Should group justice trump individual justice?

The Bakke Case

Syllabus applicants and members of a “minority group”

The Medical School of the University of Cal¬ (blacks, Chicanos, Asians, American Indians). If
ifornia at Davis (hereinafter Davis) had two an applicant of a minority group was found to
admissions programs for the entering class of 100 be “disadvantaged,” he would be rated in a man¬
students — the regular admissions program and the ner similar to the one employed by the general
special admissions program. Under the regular admissions committee. Special candidates, how¬
ever, did not have to meet the 2.5 grade point
procedure, candidates whose overall undergrad¬
uate grade point averages fell below 2.5 on a scale cutoff and were not ranked against candidates in
of 4.0 were summarily rejected. About one out of the general admissions process. About one-fifth
six applicants was then given an interview, fol¬ of the special applicants were invited for inter¬
lowing which he was rated on a scale of 1 to 100 views in 1973 and 1974, following which they were
by each of the committee members, his rating given bench-mark scores, and the top choices were
then given to the general admissions committee,
being based on the interviewers’ summaries, his
overall grade point average, his science courses which could reject special candidates for failure
grade point average, his Medical College Admis¬ to meet course requirements or other specific defi¬
sions Test (MCAT) scores, letters of recommen¬ ciencies. The special committee continued to rec¬
dation, extracurricular activities, and other ommend candidates until 16 special admission
biographical data, all of which resulted in a total selections had been made. During a four-year
“benchmark score.’’ The full admissions com¬ period 63 minority students were admitted to
mittee then made offers of admission on the basis Davis under the special program and 44 under the

of their review of the applicant’s file and his score, general program. No disadvantaged whites were
considering and acting upon applications as they admitted under the special program, though many
were received.
A separate committee, a majority of whom applied.
Respondent Allan Bakke, a white male,
were members of minority groups, operated the applied to Davis in 1973 and 1974, in both years
special admissions program. The 1973 and 1974 being considered only under the general admis¬
application forms, respectively, asked candidates sions program. Though he had a 468 out of 500
score in 1973, he was rejected since no general
whether they wished to be considered as “eco¬
applicants with scores less than 470 were being
nomically and/or educationally disadvantaged’’
176 JUSTICE AND THE LEGAL SYSTEM

accepted after respondent’s application, which THE REGENTS OF THE

was filed late in the year, had been processed and UNIVERSITY OF
completed. At that time four special admission CALIFORNIA,
slots were still unfilled. In 1974 respondent applied No. 76-811
Petitioner, -vs.-
early, and though he had a total score of 549 out ALLAN BAKKE,
of 600, he was again rejected. In neither year was
Respondent
his name placed on the discretionary waiting list.
In both years special applicants were admitted Washington, D.C. Wednesday, October 12,
1977.
with significantly lower scores than respondent’s.
After his second rejection, respondent filed this
The above-entitled matter came on for argu¬
action in state court for mandatory, injunctive,
ment at 10:01 o’clock a.m., pursuant to notice,
and declaratory relief to compel his admission to
BEFORE:
Davis, alleging that the special admissions pro¬
gram operated to exclude him on the basis of his WARREN E. BURGER, Chief Justice of the
United States
race in violation of the Equal Protection Clause
WILLIAM J. BRENNAN, JR., Associate
of the Fourteenth Amendment, a provision of the
Justice
California Constitution, and § 601 of Title VI of
POTTER STEWART, Associate Justice
the Civil Rights Act of 1964, which provides, inter
BYRON R. WHITE, Associate Justice
alia, that no person shall on the ground of race
THURGOOD MARSHALL, Associate
or color be excluded from participating in any Justice
program receiving federal financial assistance.
HARRY A. BLACKMUN, Associate Justice
The trial court found that the special pro¬
LEWIS F. POWELL, JR., Associate Justice
gram operated as a racial quota, because minority WILLIAM H. REHNQUIST, Associate
applicants in that program were rated only against Justice
one another, and 16 places in the class of 100 were JOHN PAUL STEVENS, Associate Justice
reserved for them. Declaring that petitioner could APPEARANCES:
not take race into account in making admissions
decisions, the program was held to violate the ARCHIBALD COX, ESQ., Langdell Hall,
Federal and State Constitutions and Title VI. Res¬ Cambridge, Massachusetts 02138; on behalf of the
Petitioner.
pondent’s admission was not ordered, however, for WADE H. McCREE, JR., ESQ., Solicitor
lack of proof that he would have been admitted
General of the United States, Department of
but for the special program.
Justice, Washington, D.C. 20530; on behalf of
The California Supreme Court, applying a
the United States as amicus curiae.
strict-scrutiny standard, concluded that the special REYNOLD H. COLVIN, ESQ., Jacobs,
admissions program was not the least intrusive
Blanckenburg, May & Colvin, 111 Sutter Street,
means of achieving the goals of the admittedly Suite 1800, San Francisco, California 94104; on
compelling state interests of integrating the med¬ behalf of the Respondent.
ical profession and increasing the number of doc¬ PROCEEDINGS
tors willing to serve minority patients. Without
MR. CHIEF JUSTICE BURGER. The first case
passing on the state constitutional or federal stat¬
utory grounds the court held that petitioner’s spe¬ on today’s calendar is No. 76-811, Regents of the
cial admissions program violated the Equal University of California against Bakke.

Protection Clause. Since petitioner could not sat¬ ready.

Mr. Cox, you may proceed whenever you’re
isfy its burden of demonstrating that respondent,
absent the special program, would not have been
ORAL ARGUMENT OF ARCHIBALD COX,
admitted, the court ordered his admission to
ESQ., ON BEHALF OF THE PETITIONER
Davis.
MR. COX. Mr. Chief Justice, and may it please
IN THE SUPREME COURT OF THE the Court:
UNITED STATES
This case, here on certiorari to the Supreme
 Group Justice Versus Individual Justice: Equality Problems 177

Court of California, presents a single vital ques¬ And then there is one third fact: There is no
tion; whether a state university, which is forced
racially blind method of selection which will enroll
by limited resources to select a relatively small
today more than a trickle of minority students in
number of students from a much larger number
the nation’s colleges and professions. These are
of well-qualified applicants, is free, voluntarily, the realities which the University of Calitornia at
to take into account the fact that a qualified appli¬ Davis Medical School faced in 1968 and which,
cant is black, Chicano, Asian, or native American
say, I think the Court must face when it comes
in order to increase the number of qualified mem¬ to its decision.
bers of those minority groups trained for the edu¬ Until 1969, the applicants at Davis, as at
cated professions and participating in them, most other medical schools, were chosen on the
professions from which minorities were long basis of scores on the medical aptitude test, their
excluded because of generations of pervasive college grades, and other personal experiences and
racial discrimination.
qualifications, as revealed in the application. The
The answer which the Court gives will deter¬ process excluded, virtually, almost all members of
mine, perhaps for decades, whether members of minority groups, even when they were fully qual¬
those minorities are to have the kind of mean¬ ified for places, because their scores, by and large,
ingful access to higher education in the professions were lower on the competitive test and in college
which the universities have accorded them in grade point averages.
recent years, or are to be reduced to the trivial There were no black students and no Chi-
numbers which they were prior to the adoption canos in the class entering Davis in 1968. If one
of minority admissions programs. puts to one side the predominantly black medical
There are three facts, realities, which dom¬ schools, Howard and Meharry, less than 1 percent,
inated the situation that the medical school at eight-tenths of 1 percent, of all medical students
Davis had before it, and which I think must con¬ in the United States were black in the year ’68-
trol the decision of this Court. The first is that 69.

the number of qualified applicants for the nation’s In 1969, the faculty at Davis concluded that
professional schools is vastly greater than the drawing into the medical college qualified mem¬
number of places available. That is a fact, and bers of minorities — long victimized by racial dis¬
an inescapable fact. crimination — would yield important educational,
In 1975-76, for example, there were roughly professional, and social benefits. It then chose one
30,000 qualified applicants for admission to med¬ variant of the only possible method to increasing
ical school; a much greater number of actual the number. It established what came to be known
applicants; and there were only about 14,000 as the Task Force Program, following the name
places. At Davis, there were 25 applicants for of a program established by the Association of
every seat in 1973; in 1974, the ratio had risen to American Medical Colleges, which would select —
37 to 1. So that the problem is one of selection there were only fifty in the entering class at that
among qualified applicants, not of ability to gain time — which would select eight educationally but
from a professional education. fully qualified — select eight educationally or eco¬
The second fact, on which there is no need nomically disadvantaged, but fully qualified,
for me to elaborate, but it is a fact: For gener¬ minority students for inclusion among the fifty-
ations, racial discrimination in the United States, two in the entering class.
much of it stimulated by unconstitutional state The number was increased to 16 when the
action, isolated certain minorities, condemned size of the class was increased to 100. And it was
them to inferior education, and shut them out of that this step was taken as part of a movement
the most important and satisfying aspects of led by the Association of American Medical Col¬
American life, including higher education and the leges which brought the number of black students
professions. And the greatest problem— as the studying at predominantly white medical schools
Carnegie Commission on Higher Education noted from less than 1 percent to more than 5 percent;
more than ten years ago— the greatest problem in from 211 to 3,000 in a period of ten years.
I want to emphasize that the designation of
achieving racial justice was to draw those minor¬
ities into the professions that play so important sixteen places was not a quota, at least as I would
a part in our national life. use that word. Certainly it was not a quota in the
178 JUSTICE AND THE LEGAL SYSTEM

older sense of an arbitrary limit put on the num¬ minority students, because all of them had to be,
ber of members of a non-popular group who and the testimony is that all of them were, fully
would be admitted to an institution which was
qualified.
looking down its nose at them. All right. It did say that if there are sixteen
THE COURT. It did put a limit on the number qualified minority students, and they were also
disadvantaged, then sixteen places shall be filled
of white people, didn’t it?
MR. COX. I think that it limited the number of by them and only eighty-four places will be avail¬
able to others.
non-minority, and therefore essentially white, yes.
But there are two things to be said about that: THE COURT. Mr. Cox, the facts are not in dis¬
One is that this was not pointing the finger at a pute. Does it really matter what we call this pro¬
group which had been marked as inferior in any
sense; and it was undifferentiated, it operated gram?
MR. COX. No. I quite agree with you, Mr.
against a wide variety of people. So I think it was Justice. I was trying to emphasize that the facts
not stigmatizing in the sense of the old quota here have none of the aspects — that there are none
against Jews was stigmatizing, in any way.
of the facts that lead us to think of “quota” as
THE COURT. But it did put a limit on their a bad word. What we call this doesn’t matter; and
number in each class? if we call it a quota, knowing the facts, and decid¬
ing according to the operative facts and not influ¬
MR. COX. I’m sorry?
enced by the semantics, it couldn’t matter less.
THE COURT. It did put a limit on the number Some people say this was a target. I prefer
of non-minority people in each class?
not to call it that either, because “target” has
MR. COX. It did put a limit, no question about taken on a connotation. But I would emphasize

that, and I don’t mean to infer that. And I will that it doesn’t point the finger at any group. It
direct myself to it a little later, if I may. doesn’t say to any group: You are inferior. It
THE COURT. Do you agree, then, that there was doesn’t promise taking people regardless of their
qualifications, regardless of what they promise
a quota of eighty-four?
society, promise the school, or what qualities they
MR. COX. Well, I would deny that it was a quota. have. And I think those things — and that it is not
We agree that there were sixteen places set aside forced, but was really a decision by the school as
for qualified disadvantaged minority students. to how much of its assets, what part of its assets,
Now, if that number — if setting aside a number, it would allocate to the purpose that it felt were
if the amount of resources — being fulfilled by having minorities in the student
THE COURT. No, the question is not whether body, and increasing the number of minorities in
the sixteen is a quota; the question is whether the the profession.
eighty-four is a quota. And what is your answer Justice Stevens, let us suppose that the stu¬
to that? dent was — that the school was much concerned
by the lack of qualified general practitioners in
MR. COX. I would say that neither is properly
Northern California, as indeed it was — but I want
defined as a quota.
to exaggerate for illustration a little bit — and it
THE COURT. And then, why not? told the admissions committee: Get people who
MR. COX. Because, in the first place — because come from rural communities, if they are quali¬
fied, and who express the intention of going back
of my understanding of the meaning of “quota”.
And I think the decisive things are the facts, and there. And the dean of admissions might well say:
the operative facts are: This is not something Well, how much importance do you give this? And
imposed from outside, as the quotas are in the members of the faculty might say, by vote or
employment, or the targets are in employment otherwise: We think it’s terribly important. As
sometimes today. long as they are qualified, try and get ten in that
It was not a limit on the number of minority group.
students. Other minority students were in fact 1 don’t think I would say that it was a
accepted through the regular admissions program. “quota” of ninety students for others. And 1 think
It was not a guarantee of a minimum number of this, while it involves race, of course — that’s why
 Group Justice Versus Individual Justice: Equality Problems 179

we’re here — or color, really is essentially the same

thing. The decision of the university was that there MR. COX. Well, 1 quite— that was— it’s because
the purposes, athletic and social purposes, ol an
are social purposes, or purposes aimed in the end
undergraduate school are different from those of
at eliminating racial injustice in this country and
a professional school that I am retraining from
in bringing equality of opportunity; there will be
purposes served by including minority students. pressing the analogy too far; although I think it’s
Well, how important do you think it is? We logically accurate, and it helps one’s thinking.
Well, the objectives of undergraduate education
think it’s this important. And that is the signif¬ are somewhat broader, somewhat harder to define.
icance of the number. That’s about the only sig¬ On the other hand, it’s clear to me that the inclu¬
nificance.
sion of minorities in undergraduate colleges may
THE COURT. Mr. Cox, is it the same thing as be at least as important as at a professional
an athletic scholarship? school. And indeed, of course, if they are going
to get to a professional school, they have to be
MR. COX. Well, I— there.
THE COURT. So many places reserved for ath¬ But I think one finds that the objectives of
letic scholarships. these programs apply in large part to undergraduate
MR. COX. In the sense — 1 don’t like to liken it colleges as well as professional schools, so it has
to that in terms of its importance, but 1 think the objective of improving education through
there are a number of places that may be set aside greater diversity, and is perhaps even more impor¬
tant at an undergraduate school than it is at a
for an institution’s different aims, and the aim of
some institutions does seem to be to have athletic professional school.
prowess. So that in that sense this is a choice made But 1 wouldn’t minimize its importance at a
professional school, and I would emphasize its
to promote the school’s, the faculty’s, choice of
educational and professional objectives. importance when it comes to membership in the

THE COURT. The aim of most institutions — professions, so that the professions will be aware
of all segments of society.
MR. COX. So 1 think there is a parallel, yes.
I think the objective of breaking down iso¬
THE COURT. It’s the aim of most institutions, lation, which is one of the greatest problems in
achieving racial justice in this country, is solved by
isn’t it, not just some?
including minorities, I would say, about equally
MR. COX. Yes. But they have — of athletic? involved.
THE COURT. Yes.
The objective that impresses itself on my
MR. COX. Well, I come from Harvard, sir. mind, partly because Dean Lowrey testified to it
[Laughter] and partly because I am, at least in part, an
educator, is the importance of including young men
MR. COX. I don’t know whether it’s our aim, and women at both undergraduate colleges and the
but we don’t do very well. medical schools, so that the other, younger, boys
THE COURT. But I can remember the time
and girls may see: Yes, it is possible for a black
when — Mr. Cox, I can remember the time when to go to the University of Minnesota or to go to
you did, even if— Harvard or Yale. I know Johnny down the street,

MR. COX. Yes, yes; you’re quite right. and I know Sammy’s father; he became a lawyer,
and John’s father became a doctor. This is essential
[Laughter]
if we are ever going to give true equality in a
THE COURT. Mr. Cox— factual sense to people, because the existence or
non-existence of opportunities, I am sure we all
MR. COX. Maybe I better stop. I’ve had almost —
THE COURT. Mr. Cox, along that line, is there— know, shapes people’s aspirations when they are
very young; and shapes the way they behave; and
I suppose athletic scholarships are largely con¬ shapes, in the most pedagogical sense, 1 suspect,
fined, but not entirely confined, to undergraduate
whether they do or don’t read a book in the
schools; largely, perhaps. Is that a difference
afternoon —
between the problems that you’re presenting, with THE COURT. Mr. Cox, what if—
respect to undergraduate schools and professional
graduate schools? MR. COX. — and they do or don’t read in school.
180 JUSTICE AND THE LEGAL SYSTEM

So I think all these apply to both, Mr. Chief

I’m through, Mr. Chief Justice — is that, while it
Justice, very strongly. is true that Mr. Bakke and some others, under
THE COURT. Mr. Cox, what if Davis Medical conventional standards for admission, would be
School had decided that, since the population of ranked above the minority applicant, 1 want to
doctors in the— among the minority population of emphasize that, in my judgment and I think in
doctors in California was so small, instead of fact, that does not justify saying that the better,
setting aside sixteen seats for minority doctors, they generally better-qualified people were excluded to
would set aside fifty seats, until that balance were make room for generally less-qualified people.
redressed, and the minority population of doctors There’s nothing that shows that after the first two
equalled that of the population as a whole. Would years at medical school the grade point averages
that be any more infirm than the program that will make the minority students poorer medical
Davis has? students; and still less to show that it makes them
poorer doctors or poorer citizens or poorer people.
MR. COX. Well, I think my answer is this— and
It’s quite clear that for some of the things
it’s one which I draw upon Judge Hastie for, in that a medical school wishes to accomplish, and
an excellent essay he wrote on this subject— that that this medical school wished to accomplish, that
so long as the numbers are chosen, he said, and
the minority applicant may have qualities that are
they are shown to be reasonably adaptable to the
superior to those of his classmate who is not
social goal— and I’m thinking of the one you minority. He certainly will be more effective in
mentioned. Justice Rehnquist— then there is no
bringing it home to the young Chicano that he too
reason to condemn a program because of the par¬
may become a doctor, he too may attend graduate
ticular number chosen. I would say that perhaps— school. He may be far more likely to go back to
I don’t think I have to press for a reasonably
related test; I think that here is a much better such a community to practice medicine where he’s
needed. Forgive me for taking so long.
showing than that.
THE COURT. Mr. Justice Powell referred to a
I would say that as the number goes up, the
danger of invidiousness, or the danger that this is figure of 23 percent minorities. Does that include
Orientals in California?
being done not for social purposes but to favor
one group as against another group, the risk, if MR. COX. I think it does, yes.
you will, of a finding of an invidious purpose to
THE COURT. Is there anything — is there a specific
discriminate against is great. And therefore, I think
finding in this record that Orientals, as one iden¬
it’s a harder case. But I would have to put the tifiable group, have been disadvantaged?
particular school in the context of all schools.
MR. COX. Well, I think that the decisions of this
There are programs which are designed, for
example, to train Indians to go back and teach at Court show, perhaps better than anything else, that
Indian reservations; and nobody else is taught in they have been the victim of de jure discrimination
over the years.
those. I don’t think it’s unconstitutional when you
see it in the total context. But I think that as the THE COURT. And what particular holdings do
number goes up, it raises these dangers, fears, and you refer to?
the possibility of an adverse finding on what might
MR. COX. I had in mind Okyama. I think that’s
be the factually dispositive question of intent.
the most — no, that’s not the most recent case.
Taka hash i is such a case. They go back to Yick
It is fair to say, Mr. Justice — and I don’t want
to slide away from the thing — the Task Force Pro¬ Wo. I am sure there are three or four more Your
Honor will think of quickly.
gram reduced the opportunity of a non-disadvan-
taged, non-minority applicant who was somewhere THE COURT. In terms of the professions, Mr.
near the borderline, or below it, to get into Davis, Cox, is there anything in this record to show that
because there were a certain number of places which there are not a substantial number of Orientals in
were allocated for this purpose, just as a certain medicine, in teaching, and in law?
number of places might be allocated for people
MR. COX. There are no —
who would deliver medical services as general prac¬
titioners in the minority area — in a rural area. THE COURT. Probably higher than in any of the
The other thing I was going to say — and then other categories.
 Group Justice Versus Individual Justice: Equality Problems 181

MR. COX. 1 don’t think there are any figures in

THE COURT. But in Mr. Justice Rehnquist’s ex¬
the record, and there are very few figures on mi¬
nority participation in the professions published, ample, he was assuming precisely the same moti¬
vation that is present in this case: a desire to
except with respect to black doctors and black increase the number of black and minority doctors,
medical students. The others — there are some and a desire to increase the mixture ot the student
meaningful figures on Chicanos, but the others are
population. Why would not that justify the fifty?
very scattered and inadequate.
1 would like to direct my attention, if 1 may, MR. COX. Well, if the finding is that this was
reasonably adapted to the purpose of increasing
to one important point, and that’s again, the sig¬ the number of minority doctors and that it was
nificance of the number sixteen. We submit, first,
that the Fourteenth Amendment does not outlaw not an arbitrary, capricious, selfish setting — and
that would have to be decided in the light of the
race-conscious programs where there is no invidious
other medical schools in the state and the needs in
purpose or intent, or where they are aimed at
the state — but if it’s solidly based, then I would
offsetting the consequences of our long tragic his¬
say fifty was permissible. Just as in my example,
tory of discrimination and achieving greater racial
1 said that educating only Indians in a program
equity.
tailored to training teachers to go back to Indian
THE COURT. Mr. Cox, may I interrupt you — reservations seems to me to be constitutional. And
MR. COX. I would think that these — there are such programs at both private and state
institutions.
THE COURT. Mr. Cox, may I interrupt you with
ORAL ARGUMENT OF REYNOLD H.
a question that’s always troubled me? It’s the use
of the term “invidious,” which I’ve always had COLVIN, ESQ., ON BEHALF OF THE
difficulty really understanding. You suggested, in RESPONDENT
response to Mr. Justice Rehnquist, that if the num¬ MR. COLVIN. Mr. Chief Justice, and may it please
ber were fifty rather than sixteen, there would be the Court:
a greater risk of a finding of invidious purpose.
It seems to me that the first thing that I ought
How does one — how does a judge decide when to
make such a finding? to say to this Honorable Court is that I am Allan
Bakke’s lawyer and Allan Bakke is my client. And
MR. COX. Well, I think he has to consider all the
I do not say that in any formal or perfunctory
facts. They were most recently laid out in Justice
way. I say that because this is a lawsuit. It was a
Powell’s opinion in the Arlington Heights case, the lawsuit brought by Allan Bakke up at Woodland
sort of thing that he thought the Court should
in Yolo County, California, in which Allan Bakke,
consider.
from the very beginning of this lawsuit in the first
If Your Honor is asking me what do I mean
paper we ever filed, stated the case. And he stated
by “invidious,” I mean primarily stigmatizing, the case in terms of his individual right.
marking as inferior — He stated the case in terms of the fact that
THE COURT. Let me make my — he had twice applied for admission to the medical
school at Davis and twice had been refused, both
MR. COX. — shutting out of participation —
in the year 1973 and the year 1974. And he stated
THE COURT. Mr. Cox, let me make my question
in that complaint what now, some three and a half
a little more precise. Can you give me a test which
years later, proves to be the very heart of the thing
would differentiate the case of fifty students from
that we are talking about at this juncture. He stated
the case of sixteen students? that he was excluded from that school because that
MR. COX. I would have to make this turn on a school had adopted a racial quota which deprived
subjective inquiry, I think; but I would also have him of the opportunity for admission into the
to look and see what the significance of the fifty school. And that’s where the case started. It started
students was in the overall context of the com¬ with a suit against the university.
munity, its educational system, and the state. And He stated three grounds upon which he felt
I would— I suppose I would be governed partly by that he had been deprived of the right to admission
to that school; the equal protection clause of the
purpose and partly by effect, but that would lead
me back to purpose. Fourteenth Amendment, the privileges and im-
182 JUSTICE AND THE LEGAL SYSTEM

munities clause of the Fourteenth Amendment, the respond to that just briefly, arises somehow in a
privileges and immunities portion of the California different way. And let me illustrate it this way,
Constitution, and Title VI, 42 United States Code because it is a factual — there is a factual circum¬
20(X)(d). And those were the three grounds upon stance involved. And let me try to spell out what
which he placed his complaint from the very be¬ I believe that factual circumstance to be.
ginning. Normally, if we have a goal, if we have a
THE COURT. You spoke, Mr. Colvin, of the right goal, if we are going to get a number of people
in, we select a standard, and then above that
to admission. You don’t seriously submit that he
had a right to be admitted. standard we admit people in order to qualify. Pre¬
cisely the opposite is true here. In this case, we
MR. COLVIN. I wanted to get to that, and I quite
have to follow what the factual situation is. Here,
agree; and let me say it now so that it is out of
the way. We have no contention here that Allan we have a quota where the number is first chosen,
and then the number is filled regardless of the
Bakke has a constitutional right, or even a statutory standard.
right, to be in a medical school. As a matter of
And let me say precisely from the record what
fact, I am sure that if the regents of the University
of California had decided to close the medical I mean. When we take Dr. Lowrey’s deposition,
one of the very first questions asked Dr. Lowrey
school at Davis, that Allan Bakke couldn’t stand
is this question: What is the standard of admission
up here through his lawyer, or even get beyond the
first demurrer in the Superior Court at Woodland, to the school? And Dr. Lowrey’s response is that
the standard is that we will interview no one who
and say: I have a right to go to medical school.
has a grade point average below 2.5.
That is not Allan Bakke’s position. Allan
Now, let’s look at the record on that point.
Bakke’s position is that he has a right, and that In the year 1973, the people within the quota or
right is not to be discriminated against by reason
specialization program have overall grade point
of his race. And that’s what brings Allan Bakke
to this Court. averages which run all the way down to 2.21. That’s
Now, let me go for just a moment with what in ’74. In 1973, they run all the way down to 2.11.
But the science grade point averages for that
happened in the lawsuit, because it is very impor¬
tant that we follow this step by step. The university, group — and I am not giving you averages. I mean
to say range. The range runs all the way down to
at the very beginning, did several things. First,
they denied that they had a racial quota. I think 2.02. That’s the grade point average side of it.
that disappeared from the case. Secondly, they THE COURT. Mr. Colvin, you do not dispute the
denied that Mr. Bakke would have been admitted, basic finding that everybody admitted under the
even had there been no racial quota. And, as I special program was qualified, do you?
will indicate at some length, I hope later on, that MR. COLVIN. We certainly do dispute it. Not
disappeared from the case. upon the ground that Mr. Bakke is attempting to
Let me make a distinction on this quota tell the school what the qualifications are, nor upon
question, if I may. Your Honor. There are many the ground that we as his counsel can somehow
points in the university’s brief where somehow, in set up a rule which will tell us who is qualified to
order to take the sting out of the word “quota,” go to medical school.
the word “goal” is used. This is not a quota, they MR. CHIEF JUSTICE BURGER. Mr. Colvin,
say, but it is a goal. We find that to be a real
don’t get too far away from the microphone, if
misuse of language. you want to stay on the record.
THE COURT. Mr. Colvin, to follow up a minute. MR. COLVIN. I am sorry. I sometimes think of
Justice Powell’s question. That really is a matter it as a retreat.
of characterization, rather than strictly a fact. If I But the point that we are making is this: that
understand it, there were sixteen places set aside the rules as to admission were fixed neither by
for minority applicants. You are certainly free to Bakke nor his attorneys, but were fixed by the
argue from that what you want to about quotas school itself. They were the ones who chose grade
and goals, but that really goes beyond a strict point averages, and they were the ones who chose
factual matter. MCAT scores as a basis for judging admission.
MR. COLVIN. Well, the factual question, if I may And let me say this about the MCAT scores.
 Group Justice Versus Individual Justice: Equality Problems 183

because it relates again to the question that 1 was

you turn it, is that Mr. Bakke was deprived of an
answering as to the difference between a goal and
opportunity to attend the school by reason of his
a quota — race. This is not a matter of conjecture. This is a
THE COURT. There is nothing in the record to stipulation by the regents of the University of
California.
indicate that they chose the 2.5 figure because they
felt that anyone with a lesser score would not be THE COURT. For purposes of this argument,
qualified either to do the academic work or to
though, do you need to go any further than to
practice medicine. assert and convince somebody that he was deprived
MR. COLVIN. No, but that was their rule. That of an opportunity to compete for one of the sixteen
was their rule, and I think there is a fair inference seats because of his race? Do you need to go any
further than that?
from the record that there was a reasonable basis
for Dr. Lowrey stating that that was the rule of MR. COLVIN. I am afraid that —
the school.
THE COURT. If you don’t need to go any further,
THE COURT. Yes, it was an administrative basis. you certainly are taking up a lot of your time.
MR. COLVIN. It was an administrative basis, but MR. COLVIN. I don’t want to take up my time,
at least it was their basis. except to say that there is within this record the
THE COURT. But then, how does that go — why stipulation of the regents of the University of Cal¬
do you disagree with the proposition that there is ifornia that Mr. Bakke was deprived of the op¬
nothing in this record to show that any of the portunity to attend the University of California
Medical School at Davis because of the use of the
special people were qualified to study and to prac¬
tice? sixteen places by the special admissions program.
THE COURT. Mr. Colvin, may I follow up on
MR. COLVIN. We simply say that we do not
agree, we do not agree that there is a showing that Justice White’s observation — same as 1 view this
they were qualified. We are not making the argu¬ record — the university doesn’t deny or dispute the
ment that they were disqualified, but we are saying: basic facts. They are perfectly clear. We are here —
at least I am here — primarily to hear a constitu¬
Taking the school’s own standards, taking the very
tional argument. You have devoted twenty minutes
thing that the school was talking about, they simply
do not measure up on that point. to laboring a fact, if I may say so. I would like
But let me finish, if I may, because it is hard to help, I really would, on the constitutional issues.
to finish all of these things. And I do want to Would you address that?
comment about the same thing as it applies to the MR. COLVIN. Yes, I would like to address — I
MCAT scores. would like to address the problems that arise with
You will recall that in Dr. Lowrey’s deposition quota and the problems that arise with race, and
I would like also to address the alternative which
Dr. Lowrey says: “We would be hard pressed” —
“We would be hard pressed to admit people to the the university suggests.

school if they had MCAT” — Medical College Ap¬ We have the deepest difficulty in dealing with
titude Test — “percentiles in science and in verbal this problem of quota; and many, many questions
which were below 50.” arise. For example, there is a question of numbers.
But look at the record in the case. Look at What is the appropriate quota? What is the ap¬
the record in the case. In 1973, the average — not propriate quota for a medical school? Sixteen,
the range, but the average — of the people in the eight, thirty-two, sixty-four, a hundred? On what
special admissions group was in the 35th percentile basis, on what basis is that quota determined?
in science and in the 46th percentile in verbal. In And there is a problem, a very serious problem
1974, the percentile in science — and this is an av¬ of judicial determination. Does the Court leave
erage and not a range — was 37, and in verbal 34. open to the school the right to choose any number
Allan Bakke took the test only once and his it wants in order to satisfy that quota? Would the
record is there. You will find it on page 13 of our Court be satisfied to allow an institution such as
brief He scored in the 97th percentile in science the University of California to adopt a quota of
and in the 96th percentile in verbal. 100 percent and thus deprive all persons who are
The ultimate fact in this case, no matter how not people within selected minority groups?
184 JUSTICE AND THE LEGAL SYSTEM

THE COURT. Well, what’s your response to the advantage or the same disadvantage; the same
assertion of the university that is was entitled to wealth or the same poverty; the same education or
have a special program and take race into account, the same lack of education.
and that under the Fourteenth Amendment there There are two benefits for a university to look
was no barrier to its doing that, because of the at the question of advantage. And the first of those
interests that were involved? What’s your response benefits is that it does not run into a constitutional
to that?
difficulty. And the second advantage — or the sec¬
MR. COLVIN. Our response to that is fundamen¬ ond benefit of looking at the question of disad¬
tally that race is an improper classification in this vantage is that it meets the problem where it exists.
situation. As a matter of fact, the Government in It meets it at the point of the individual. It does
its own brief makes that very point. not generalize. It is not true that all members of
a given race have exactly the same experience, the
THE COURT. Mr. Colvin, what if the university
same wealth, the same education. And that’s the
says: We don’t want to just aim at the disadvan¬ point that Justice Mosk is making in the California
taged; we want to increase the number of black
Supreme Court. He says:
doctors who are practicing in California? Is that a
permissible goal on the part of the university? It is inappropriate, whatever your goal
MR. COLVIN. To the extent that the judgment is is, to jump to the question of making
these racial discriminations.
made on whether those doctors are disadvantaged,
it is a legitimate means. To the extent— and the And particularly inappropriate, we say, be¬
Supreme Court of California says this — to the cause the thing happens is that it keeps Mr. Bakke
extent that the preference is on the basis of the out of medical school, not because of somebody
race, we believe that is an unconstitutional advan¬ else’s race or anything else, but because of Mr.
tage.
Bakke’s race he becomes ineligible himself to enter
THE COURT. Well, do you say, then, it is not a the medical school. And Mr. Bakke’s individual
stake in this matter is an important stake.
permissible goal on the part of the university to
And I started with the proposition that I am
increase the number of black doctors practicing —
MR. COLVIN. Mr. Bakke’s lawyer and Mr. Bakke is my client.
We say it is a permissible goal,
He has a right to that protection. He has a right,
and if— if he desires, to show that he is one of those who
THE COURT. If it is a permissible goal, why on is entitled to enter the medical school. To keep
earth beat around the bush? Why not simply make him out because of his race, we submit, is an
a race-oriented selection? impropriety. The whole point —
MR. COLVIN. Because the Supreme Court says THE COURT. Your client did compete for the
to the university: You cannot leap to the quota eighty- four seats, didn’t he?
system. What you must first do is to undertake to MR. COLVIN. Yes, he did.
meet the question of disadvantage where it exists,
THE COURT. And he lost?
if it exists.
MR. COLVIN. Yes, he did.
THE COURT. But the university comes back and
says: We are not interested in disadvantage as such; THE COURT. Now, would your argument be the
we are interested in blacks. same if one, instead of sixteen, seats were left

MR. COLVIN. Yes, but the Supreme Court comes open?

back to the university and says: What you are MR. COLVIN. Most respectfully, the argument
does not turn on the numbers.
doing is skipping one step. You are not — What is
the reason for this goal? What is the reason why THE COURT. My question is: Would you make
people are saying: We want more Chicano doctors, the same argument?
more black doctors, more Oriental doctors? The MR. COLVIN. Yes.
reason is, we claim that there was disadvantage.
THE COURT. If it was one?
The difficulty is, with a racial classification, is that
we are engaging in these broad generalizations that MR. COLVIN. If it was one and if there was an
every one of a given race has suffered the same agreement, as there is in this case, that he was
 Group Justice Versus Individual Justice: Equality Problems 185

kept out by his race. Whether it is one, one hun¬ REBUTTAL ARGUMENT OF
dred, two — ARCHIBALD COX, ESQ.

THE COURT. I didn’t say anything about him MR. COX. I think perhaps 1 can be most helpful
being — I said that the regulation said that one seat
by trying to put the very particular points we
would be left open for an underprivileged minority
covered in my argument within a larger framework
person. of my basic thinking. The first main proposition
that 1 would assert is that the racially conscious,
MR. COLVIN. Yes. We don’t think we would ever
get to that point — admissions program at Davis, and any racially
conscious admissions program designed to increase
THE COURT. So numbers are just important?
the number of minority students at a professional
MR. COLVIN. Numbers are unimportant. It is school, is fully consistent with both the letter and
the principle of keeping a man out because of his the spirit of the Fourteenth Amendment.
race that is important. And I simply want to add one footnote, to

THE COURT. You are arguing about keeping say that when I use the word “race” or “racially
conscious,” I am not speaking of race the way one
somebody out, and the other side is arguing about
would speak of a red-headed man or a man that
getting somebody in. has some other mark that is sheer happenstance.
MR. COLVIN. That’s right. That isn’t the quality of race in our society today.
And I am really talking about all of the things
THE COURT. So it depends on which way you
that have gone with race and the remnants of those
look at it, doesn’t it?
things in terms of current social problems; and
MR. COLVIN. It depends on which way you look race is a shorthand to express them.
at the problem. The Supreme Court of California was wrong
THE COURT. It does? and its judgment should be reversed, because it
said that under present circumstances we may not
MR. COLVIN. If I may finish. The problem —
take race into account. That’s what Mr. Colvin
THE COURT. You are talking about your client’s pitched his case on. That’s the proposition he
rights. Don’t these underprivileged people have presented below and he presented here.
some rights? The judicializing or constitutionalizing, the
drawing of courts in the writing of monolithic
MR. COLVIN. They certainly have the right to
rules, tends to dampen one of the greatest — aban¬
compete — dons one of the greatest sources of creativity in
THE COURT. To eat cake. this country; and the opportunity, in dealing with
MR. COLVIN. They have the right to compete. delicate and sensitive and often painful — it is not
They have the right to equal competition. They easy to turn down young men and women. And
even have another right, which was given them by in dealing with those problems we are advised to
the California Supreme Court. They have the right take advantage of the fact that there are fifty states.
to compete not only upon the basis of grades, they We are advised to take advantage, so far as the
legislatures will allow it, of the fact that different
have the right to compete upon the basis of dis¬
advantage. The university, of course, says we will campuses, different faculties, are allowed to make
up their own minds. And I think if you set a lot
have nothing to do with that. If we can’t have a of rules that would draw the Federal courts into
quota, then there is no place for us to go.
Bear in mind that the Supreme Court of the scrutinizing the details of what is done, it would
State of California is entirely explicit in its opinion. invite constant litigation and, as I say, it would
abandon a source of creativity. It would destroy
It says: “We are not” — emphasize “we are not” — important autonomy in wrestling with what I, and
telling the University of California Med¬ I am sure all the Court, recognize is an extraor¬
ical School that it has to take the hun¬ dinarily sensitive and difficult problem, but a search
dred people with the highest grade point for justice for all, to which this country has always
average or the highest MCAT scores been committed, and which I am sure it is.

— or whatever it is— MR. CHIEF JUSTICE BURGER. Thank you.

186 JUSTICE AND THE LEGAL SYSTEM

gentlemen; the case is submitted.

In both years Bakke’s application was considered
under the general admissions program, and he
received an interview. His 1973 interview was with
Regents of the University of California Dr. Theodore C. West, who considered Bakke “a
V. Bakke
very desirable applicant to [the] medical school.”
Despite a strong benchmark score of 468 out of
438 U.S. 265
500, Bakke was rejected. His application had come
Supreme Court of the United States late in the year, and no applicants in the general
June 28, 1978 admissions process with scores below 470 were
accepted after Bakke’s application was completed.
Archibald Cox argued the cause for petitioner. There were four special admissions slots unfilled
With him on the briefs were Paul J. Mishkin, Jack at that time, however, for which Bakke was not
B. Owens, and Donald L. Reidhaar.
considered. After his 1973 rejection, Bakke wrote
Reynold H. Colvin argued the cause and filed
to Dr. George H. Lowrey, Associate Dean and
briefs for respondent.
Chairman of the Admissions Committee, protesting
Solicitor General McCree argued the cause for
the United States as amicus curiae. With him on that the special admissions program operated as a
racial and ethnic quota.
the briefs were Attorney General Bell, Assistant
Attorney General Days, Deputy Solicitor General Bakke’s 1974 application was completed early
Wallace, Brian K. Landsberg, Jessica Dunsay Sil¬ in the year. His student interviewer gave him an
ver, Miriam R. Eisenstein, and Vincent F.
O’Rourke. overall rating of 94, finding him “friendly, well
tempered, conscientious and delightful to speak
MR. JUSTICE POWELL announced the with.” His faculty interviewer was, by coincidence,
judgment of the Court. the same Dr. Lowrey to whom he had written in
.... For the reasons stated in the following protest of the special admissions program. Dr.
opinion, I believe that so much of the judgment Lowrey found Bakke “rather limited in his ap¬
of the California court as holds petitioner’s special proach” to the problems of the medical profession
admissions program unlawful and directs that re¬ and found disturbing Bakke’s “very definite opin¬
spondent be admitted to the Medical School must ions which were based more on his personal view¬
be affirmed. For the reasons expressed in a separate
points than upon a study of the total problem.”
opinion, my Brothers THE CHIEF JUSTICE, Dr. Lowrey gave Bakke the lowest of his six ratings,
MR. JUSTICE STEWART, MR. JUSTICE
REHNQUIST, and MR. JUSTICE STEVENS con¬ an 86; his total was 549 out of 600. Again, Bakke’s
application was rejected. In neither year did the
cur in this judgment.
chairman of the admissions committee, Dr. Lowrey,
I also conclude for the reasons stated in the
exercise his discretion to place Bakke on the waiting
following opinion that the portion of the court’s
judgment enjoining petitioner from according any list. In both years, applicants were admitted under
consideration to race in its admissions process must the special program with grade point averages,
be reversed. For reasons expressed in separate opin¬ MCAT scores, and benchmark scores significantly
ions, my Brothers MR. JUSTICE BRENNAN, lower than Bakke’s.
MR. JUSTICE WHITE, MR. JUSTICE MAR¬
SHALL, and MR. JUSTICE BLACKMUN concur Ill
in this judgment.
[Tjhe parties fight a sharp preliminary action
Affirmed in part and reversed in part.
over the proper characterization of the special ad¬
1 missions program. Petitioner prefers to view it as
Allan Bakke is a white male who applied to establishing a “goal” of minority representation in
the Davis Medical School in both 1973 and 1974. the Medical School. Respondent, echoing the courts
 Group Justice Versus Individual Justice: Equality Problems 187

below, labels it a racial quota.’ clock of our liberties, however, cannot be turned
This semantic distinction is beside the point:
back to 1868. (Citing cases] It is far too late to
The special admissions program is undeniably a
classification based on race and ethnic background. argue that the guarantee ot equal protection to all
To the extent that there existed a pool of at least persons permits the recognition of special wards
minimally qualified minority applicants to fill the entitled to a degree of protection greater than that
16 special admissions seats, white applicants could accorded others.®
compete only for 84 seats in the entering class, Once the artificial line of a “two-class theory”
of the Fourteenth Amendment is put aside, the
rather than the 100 open to minority applicants.
Whether this limitation is described as a quota or difficulties entailed in varying the level of judicial
a goal, it is a line drawn on the basis of race and review according to a perceived “preferred” status
ethnic status. of a particular racial or ethnic minority are in¬
Petitioner urges us to adopt for the first time tractable. The concepts of “majority” and “mi¬
a more restrictive view of the Equal Protection nority” necessarily reflect temporary arrangements
Clause and hold that discrimination against mem¬ and political judgments. As observed above, the
bers of the white “majority” cannot be suspect if white “majority” itself is composed of various
minority groups, most of which can lay claim to
its purpose can be characterized as “benign.”^ The
a history of prior discrimination at the hands of
the State and private individuals. Not all of these
groups can receive preferential treatment and cor¬
’ Petitioner defines “quota” as a requirement which
must be met but can never be exceeded, regardless of the responding judicial tolerance of distinctions drawn
in terms of race and nationality, for then the only
quality of the minority applicants. Petitioner declares that
there is no “floor” under the total number of minority “majority” left would be a new minority of white
students admitted; completely unqualified students will Anglo-Saxon Protestants. There is no principled
not be admitted simply to meet a “quota.” Neither is basis for deciding which groups would merit
there a “ceiling,” since an unlimited number could be
admitted through the general admissions process. On this “heightened judicial solicitude” and which would
basis the special admissions program does not meet pe¬
titioner’s definition of a quota.
The court below found — and petitioner does not
deny — that white applicants could not compete for the
16 places reserved solely for the special admissions pro¬ color and ethnic origin. Moreover, Mr. Justice Brennan,
gram. 18 Cal. 3d, at 44, 553 P.2d, at 1159. Both courts Mr. Justice White, Mr. Justice Marshall, and Mr. Justice
below characterized this as a “quota” system. Blackmun offer no principle for deciding whether pref¬
2 In the view of Mr. Justice Brennan, Mr. Justice erential classifications reflect a benign remedial purpose
White, Mr. Justice Marshall, and Mr. Justice Blackmun, or a malevolent stigmatic classification, since they are
willing in this case to accept mere post hoc declarations
the pliable notion of “stigma” is the crucial element in
analyzing racial classifications. The Equal Protection by an isolated state entity — a medical school faculty —
Clause is not framed in terms of “stigma.” Certainly the unadorned by particularized findings of past discrimi¬
word has no clearly defined constitutional meaning. It nation, to establish such a remedial purpose.
reflects a subjective judgment that is standardless. All 3 Professor Bickel noted the self-contradiction of that
view:
state imposed classifications that rearrange burdens and
benefits on the basis of race are likely to be viewed with “The lesson of the great decisions of the Supreme
deep resentment by the individuals burdened. The denial Court and the lesson of contemporary history have been
to innocent persons of equal rights and opportunities the same for at least a generation: discrimination on the
may outrage those so deprived and therefore may be basis of race is illegal, immoral, unconstitutional, inher¬
perceived as invidious. These individuals are likely to find ently wrong, and destructive of democratic society. Now
little comfort in the notion that the deprivation they are this is to be unlearned and we are told that this is not
asked to endure is merely the price of membership in the a matter of funoamental principle but only a matter of
dominant majority and that its imposition is inspired by whose ox is gored. Those for whom racial equality was
demanded are to be more equal than others. Having
the supposedly benign purpose of aiding others. One
found support in the Constitution for equality, they now
should not lightly dismiss the inherent unfairness of, and
the perception of mistreatment that accompanies, a system claim support for inequality under the same Constitution.”
A. Bickel, The Morality of Consent 133 (1975).
of allocating benefits and privileges on the basis of skin
188 JUSTICE AND THE LEGAL SYSTEM

not.^ Courts would be asked to evaluate the extent ebb and flow of political forces. Disparate consti¬
of the prejudice and consequent harm suffered by tutional tolerance of such classifications well may
various minority groups. Those whose societal in¬
serve to exacerbate racial and ethnic antagonisms
jury is thought to exceed some arbitrary level of
rather than alleviate them. Also, the mutability of
tolerability then would be entitled to preferential
a constitutional principle, based upon shifting po¬
classifications at the expense of individuals belong¬
litical and social judgments, undermines the
ing to other groups. Those classifications would be
chances for consistent application of the Consti¬
free from exacting judicial scrutiny. As these pref¬
erences began to have their desired effect, and the tution from one generation to the next, a critical
consequences of past discrimination were undone, feature of its coherent interpretation. In expounding
new judicial rankings would be necessary. The kind the Constitution, the Court’s role is to discern
of variable sociological and political analysis nec¬ “principles sufficiently absolute to give them roots
essary to produce such rankings simply does not throughout the community and continuity over
lie within the judicial competence— even if they significant periods of time, and to lift them above
otherwise were politically feasible and socially de¬ the level of the pragmatic political judgments of a
sirable.
particular time and place.’’ A. Cox, The Role of
Moreover, there are serious problems of justice the Supreme Court in American Government 114
connected with the idea of preference itself. First,
(1976).
it may not always be clear that a so-called pref¬
erence is in fact benign. Courts may be asked to If it is the individual who is entitled to judicial
validate burdens imposed upon individual members protection against classifications based upon his
of a particular group in order to advance the racial or ethnic background because such distinc¬
group’s general interest. United Jewish Organiza¬ tions impinge upon personal rights, rather than the
tions V. Carey, 430 U.S., at 172-173 (Brennan, J., individual only because of his membership in a
concurring in part). Nothing in the Constitution particular group, then constitutional standards may
supports the notion that individuals may be asked be applied consistently. Political judgments regard¬
to suffer otherwise impermissible burdens in order
ing the necessity for the particular classification
to enhance the societal standing of their ethnic
may be weighed in the constitutional balance, Ko-
groups. Second, preferential programs may only rematsu v. United States, 323 U.S. 214 (1944), but
reinforce common stereotypes holding that certain
the standard of justification will remain constant.
groups are unable to achieve success without special
This is as it should be, since those political judg¬
protection based on a factor having no relationship
to individual worth. See DeFunis v. Odegaard, 416 ments are the product of rough compromise struck
U.S. 312, 343 (Douglas, J., dissenting). Third, there by contending groups within the democratic proc¬
is a measure of inequity in forcing innocent persons ess. When they touch upon an individual’s race or
ethnic background, he is entitled to a judicial
in respondent’s position to bear the burdens of
redressing grievances not of their making. determination that the burden he is asked to bear
By hitching the meaning of the Equal Pro¬ on that basis is precisely tailored to serve a com¬
tection Clause to these transitory considerations, pelling governmental interest. The Constitution
we would be holding, as a constitutional principle, guarantees that right to every person regardless of
that judicial scrutiny of classifications touching on his background.
racial and ethnic background may vary with the

IV
* As I am in agreement with the view that race may
be taken into account as a factor in an admissions The special admission program purports to
program, I agree with my Brothers Brennan, White,
Marshall, and Blackmun that the portion of the judgment
serve the purposes of: “reducing the historic deficit
of traditionally disfavored minorities in medical
that would proscribe all consideration of race must be
reversed. But I disagree with much that is said in their schools and in the medical profession,’’ Brief for
opinion. Petitioner 32; (ii) countering the effects of societal
 Group Justice Versus Individual Justice: Equality Problems 189

discrimination;’ increasing the number of physi¬ cases]

own sake. This the Constitution forbids. [Citing
cians who will practice in communities currently
underserved; and (iv) obtaining the educational
benefits that flow from an ethnically diverse student The State certainly has a legitimate and sub¬
stantial interest in ameliorating, or eliminating
body.
where feasible, the disabling edects of identified
If petitioner’s purpose is to assure within its discrimination. The line of school desegregation
student body some specified percentage of a par¬
cases, commencing with Brown, attests to the im¬
ticular group merely because of its race or ethnic
portance of this state goal and the commitment of
origin, such a preferential purpose must be rejected
the judiciary to affirm all lawful means toward its
not as insubstantial but as facially invalid. Prefer¬ attainment. In the school cases, the States were
ring members of any one group for no reason other required by court order to redress the wrongs
than race or ethnic origin is discrimination for its
worked by specific instances of racial discrimina¬
tion. That goal was far more focused than the
remedying of the effects of “societal discrimina¬
tion,” an amorphous concept of injury that may
5 A number of distinct subgoals have been advanced be ageless in its reach into the past.
as falling under the rubric of “compensation for past We have never approved a classification that
discrimination.” For example, it is said that preferences
for Negro applicants may compensate for harm done aids persons perceived as members of relatively
them personally, or serve to place them at economic levels victimized groups at the expense of other innocent
they might have attained but for discrimination against individuals in the absence of judicial, legislative,
their forebears. Greenawalt, Judicial Scrutiny of “Benign” or administrative findings of constitutional or stat¬
Racial Preference in Law School Admissions, 75 Colum. utory violations. [Citing cases] After such findings
L. Rev. 559, 581-586 (1975). Another view of the “com¬ have been made, the governmental interest in pre¬
pensation” goal is that it serves as a form of reparation ferring members of the injured groups at the ex¬
by the “majority” to a victimized group as a whole. B. pense of others is substantial, since the legal rights
Bittker, The Case for Black Reparations (1973). That
of the victims must be vindicated. In such a case,
justification for racial or ethnic preferences has been
the extent of the injury and the consequent remedy
subjected to much criticism. E.g., Greenawalt, supra, at
581; Posner, The DeFunis Case and the Constitutionality will have been judicially, legislatively, or adminis¬
of Preferential Treatment of Racial Minorities, 1974 Sup. tratively defined. Also, the remedial action usually
Ct. Rev. 1, 16-17. Finally, it has been argued that ethnic remains subject to continuing oversight to assure
that it will work the least harm possible to other
preferences “compensate” the group by providing exam¬
ples of success whom other members of the group will innocent persons competing for the benefit. With¬
emulate, thereby advancing the group’s interest and so¬ out such findings of constitutional or statutory
ciety’s interest in encouraging new generations to overcome violations, it cannot be said that the government
the barriers and frustrations of the past. Redish, Pref¬ has any greater interest in helping one individual
erential Law School Admissions and the Equal Protection
than in refraining from harming another. Thus, the
Clause: An Analysis of the Competing Arguments, 22
UCLA L. Rev. 343, 391 (1974). For purposes of analysis government has no compelling justification for in¬
these subgoals need not be considered separately. flicting such harm.
Racial classifications in admissions conceivably could Hence, the purpose of helping certain groups
whom the faculty of the Davis Medical School
serve a fifth purpose of fair appraisal of each individual’s
academic promise in the light of some cultural bias in
perceived as victims of “societal discrimination”
grading or testing procedures. To the extent that race and does not justify a classification that imposes dis¬
ethnic background were considered only to the extent of advantages upon persons like respondent, who bear
curing established inaccuracies in predicting academic per¬ no responsibility for whatever harm the benefici¬
formance, it might be argued that there is no “preference” aries of the special admissions program are thought
at all. Nothing in this record, however, suggests either to have suffered. To hold otherwise would be to
that any of the quantitative factors considered by the convert a remedy heretofore reserved for violations
Medical School were culturally biased or that petitioner’s of legal rights into a privilege that all institutions
special admissions program was formulated to correct for
throughout the Nation could grant at their pleasure
any such biases. Furthermore, if race or ethnic back¬ to whatever groups are perceived as victims of
ground were used solely to arrive at an unbiased prediction
of academic success, the reservation of fixed numbers of societal discrimination. That is a step we have never
seats would be inexplicable.
approved.
190 JUSTICE AND THE LEGAL SYSTEM

Petitioner identifies, as another purpose of its Thus, in arguing that its universities must be
program, improving the delivery of health-care accorded the right to select those students who will
services to communities currently underserved. It
contribute the most to the “robust exchange of
may be assumed that in some situations a State’s
ideas,” petitioner invokes a countervailing consti¬
interest in facilitating the health care of its citizens tutional interest, that of the First Amendment. In
is sufficiently compelling to support the use of a this light, petitioner must be viewed as seeking to
suspect classification. But there is virtually no ev¬ achieve a goal that is of paramount importance in
idence in the record indicating that petitioner’s the fulfillment of its mission.
special admissions program is either needed or It may be argued that there is greater force
geared to promote that goal.* The court below to these views at the undergraduate level than in a
addressed this failure of proof: medical school where the training is centered pri¬
[T]here are more precise and reliable marily on professional competency. But even at the
ways to identify applicants who are gen¬ graduate level, our tradition and experience lend
uinely interested in the medical problems support to the view that the contribution of di¬
of minorities than by race. An applicant versity is substantial. In Sweatt v. Painter, 339
of whatever race who has demonstrated U.S., at 634, the Court made a similar point with
his concern for disadvantaged minorities specific reference to legal education:
in the past and who declares that practice The law school, the proving ground for
in such a community is his primary
legal learning and practice, cannot be
professional goal would be more likely effective in isolation from the individuals
to contribute to alleviation of the med¬
and institutions with which the law in¬
ical shortage than one who is chosen teracts. Few students and no one who
entirely on the basis of race and disad¬
has practiced law would choose to study
vantage. In short, there is no empirical
in an academic vacuum, removed from
data to demonstrate that any one race
the interplay of ideas and the exchange
is more selflessly socially oriented or by of views with which the law is concerned.
contrast that another is more selfishly
acquisitive. 18 Cal. 3d, at 56, 553 P.2d, Physicians serve a heterogeneous population. An
at 1167.
otherwise qualified medical student with a partic¬
ular background — whether it be ethnic, geographic,
The fourth goal asserted by petitioner is the
culturally advantaged or disadvantaged — may bring
attainment of a diverse student body. This clearly
to a professional school of medicine experiences,
is a constitutionally permissible goal for an insti¬
outlooks, and ideas that enrich the training of its
tution of higher education. Academic freedom,
though not a specifically enumerated constitutional student body and better equip its graduates to
render with understanding their vital service to
right, long has been viewed as a special concern humanity.
of the First Amendment. The freedom of a uni¬
versity to make its own judgments as to education Ethnic diversity, however, is only one element
in a range of factors a university properly may
includes the selection of its student body. . . . The
consider in attaining the goal of a heterogeneous
atmosphere of “speculation, experiment and crea¬
student body. Although a university must have wide
tion” — so essential to the quality of higher edu¬ discretion in making the sensitive judgments as to
cation — is widely believed to be promoted by a
who should be admitted, constitutional limitations
diverse student body. As the Court noted in Key-
protecting individual rights may not be disregarded.
ishian, it is not too much to say that the “nation’s
future depends upon leaders trained through wide Respondent urges — and the courts below have
held — that petitioner’s dual admissions program is
exposure” to the ideas and mores of students as
diverse as this Nation of many peoples. a racial classification that impermissibly infringes
his rights under the Fourteenth Amendment. As
the interest of diversity is compelling in the context
of a university’s admissions program, the question
* The only evidence in the record with respect to remains whether the program’s racial classification
such underservice is a newspaper article. Record 473. is necessary to promote this interest.
 Group Justice Versus Individual Justice: Equality Problems 191

V
It has been suggested that an admissions pro¬
The experience of other university admissions gram which considers race only as one factor is
programs, which take race into account in achieving
simply a subtle and more sophisticated — but no
the educational diversity valued by the First less effective — means of according racial preference
Amendment, demonstrates that the assignment of
than the Davis program. A facial intent to dis¬
a fixed number of places to a minority group is
not a necessary means toward that end. . . . [R]ace criminate, however, is evident in petitioner’s pref¬
erence program and not denied in this case. No
or ethnic background may be deemed a “plus” in such facial infirmity exists in an admissions pro¬
a particular applicant’s file, yet it does not insulate gram where race or ethnic background is simply
the individual from comparison with all other can¬ one element — to be weighed fairly against other
didates for the available seats. The file of a par¬
elements — in the selection process. A court would
ticular black applicant may be examined for his
not assume that a university, professing to employ
potential contribution to diversity without the fac¬
a facially nondiscriminatory admissions policy,
tor of race being decisive when compared, for
would operate it as a cover for the functional
example, with that of an applicant identified as an
equivalent of a quota system. In short, good faith
Italian-American if the latter is thought to exhibit
would be presumed in the absence of a showing
qualities more likely to promote beneficial educa¬
to the contrary in the manner permitted by our
tional pluralism. Such qualities could include ex¬
ceptional personal talents, unique work or service cases." [Citing cases]
In enjoining petitioner from ever considering
experience, leadership potential, maturity, demon¬
strated compassion, a history of overcoming dis¬ the race of any applicant, however, the courts below
advantage, ability to communicate with the poor, failed to recognize that the State has a substantial
or other qualifications deemed important. In short, interest that legitimately may be served by a prop¬
an admissions program operated in this way is erly devised admissions program involving the com¬
flexible enough to consider all pertinent elements petitive consideration of race and ethnic origin. For
of diversity in light of the particular qualifications
this reason, so much of the California court’s
of each applicant, and to place them on the same
judgment as enjoins petitioner from any consid-
footing for consideration, although not necessarily
according them the same weight. Indeed, the weight
attributed to a particular quality may vary from
year to year depending upon the “mix” both of * Universities, like the prosecutor in Swain, may
the student body and the applicants for the incom¬ make individualized decisions, in which ethnic background
ing class.
plays a part, under a presumption of legality and legiti¬
This kind of program treats each applicant
mate educational purpose. So long as the university pro¬
as an individual in the admissions process. The ceeds on an individualized, case-by-case basis, there is no
applicant who loses out on the last available seat warrant for judicial interference in the academic process.
to another candidate receiving a “plus” on the If an applicant can establish that the institution does not
basis of ethnic background will not have been adhere to a policy of individual comparisons, or can show
foreclosed from all consideration for that seat sim¬ that a systematic exclusion of certain groups results, the
ply because he was not the right color or had the presumption of legality might be overcome, creating the
wrong surname. It would mean only that his com¬ necessity of proving legitimate educational purpose.
bined qualifications, which may have included sim¬ There also are strong policy reasons that correspond
ilar nonobjective factors, did not outweigh those to the constitutional distinction between petitioner’s pref¬
of the other applicant. His qualifications would erence program and one that assures a measure of com¬
have been weighed fairly and competitively, and he petition among all applicants. Petitioner’s program will
be viewed as inherently unfair by the public generally as
would have no basis to complain of unequal treat¬
well as by applicants for admission to state universities.
ment under the Fourteenth Amendment.^ Fairness in individual competition for opportunities, es¬
pecially those provided by the State, is a widely cherished
American ethic. Indeed, in a broader sense, an underlying
f The denial to respondent of this right to individ¬
assumption of the rule of law is the worthiness of a
ualized consideration without regard to his race is the
system of justice based on fairness to the individual. As
principal evil of petitioner’s special admissions program. Mr. Justice Frankfurter declared in another connection,
Nowhere in the opinion of Mr. Justice Brennan, Mr.
Justice White, Mr. Justice Marshall, and Mr. Justice “[justice] must satisfy the appearance of justice.” Offutt
V. United States, 348 U.S. 11, 14 (1954).
Blackmun is this denial even addressed.
192 JUSTICE AND THE LEGAL SYSTEM

eration of the race of any applicant must be re¬ had widened: The number of Negroes employed in
versed.
medicine remained frozen at 2.2% while the Negro
VI population had increased to 11.1%. The number
of Negro admittees to predominantly white medical
With respect to respondent’s entitlement to schools, moreover, had declined in absolute num¬
an injunction directing his admission to the Medical bers during the years 1955 to 1964. The statistical
School, petitioner has conceded that it could not information was compiled by Government officials
carry its burden of proving that, but for the exis¬ or medical educators, and has been brought to our
tence of its unlawful special admissions program, attention in many of the briefs. Neither the parties
respondent still would not have been admitted. nor the amici challenge the validity of the statistics
Hence, respondent is entitled to the injunction, and alluded to in our discussion.
that portion of the judgment must be affirmed. Moreover, Davis had very good reason to
DISSENT: believe that the national pattern of underrepresen¬
tation of minorities in medicine would be perpet¬
Opinion of MR. JUSTICE BRENNAN, MR. uated if it retained a single admissions standard.
JUSTICE WHITE, MR. JUSTICE MARSHALL, For example, the entering classes in 1968 and 1969,
and MR. JUSTICE BLACKMUN, concurring in the years in which such a standard was used,
the judgment in part and dissenting in part. . . . included only 1 Chicano and 2 Negroes out of the
Davis’ articulated purpose of remedying the 50 admittees for each year. Nor is there any relief
effects of past societal discrimination is, under our from this pattern of underrepresentation in the
cases, sufficiently important to justify the use of statistics for the regular admissions program in later
race-conscious admissions programs where there is
a sound basis for concluding that minority under¬ years. Davis clearly could conclude that the serious
representation is substantial and chronic, and that and persistent underrepresentation of minorities in
the handicap of past discrimination is impeding medicine depicted by these statistics is the result of
access of minorities to the Medical School. handicaps under which minority applicants labor
Properly construed . . . our prior cases une¬ as a consequence of a background of deliberate,
quivocally show that a state government may adopt purposeful discrimination against minorities in ed¬
race-conscious programs if the purpose of such ucation and in society generally, as well as in the
programs is to remove the disparate racial impact medical profession. From the inception of our na¬
its actions might otherwise have and if there is tional life, Negroes have been subjected to unique
reason to believe that the disparate impact is itself legal disabilities impairing access to equal educa¬
the product of past discrimination, whether its own tional opportunity. Under slavery, penal sanctions
or that of society at large. There is no question were imposed upon anyone attempting to educate
that Davis’ program is valid under this test. Negroes. After enactment of the Fourteenth
Certainly, on the basis of the undisputed fac¬ Amendment the States continued to deny Negroes
tual submissions before this Court, Davis had a equal educational opportunity, enforcing a strict
sound basis for believing that the problem of un¬ policy of segregation that itself stamped Negroes
derrepresentation of minorities was substantial and as inferior . . . that relegated minorities to inferior
chronic and that the problem was attributable to educational institutions, and that denied them in¬
handicaps imposed on minority applicants by past tercourse in the mainstream of professional life
and present racial discrimination. Until at least necessary to advancement. See Sweat t v. Painter,
1973, the practice of medicine in this country was, 339 U.S. 629 (1950). Segregation was not limited
in fact, if not in law, largely the prerogative of to public facilities, moreover, but was enforced by
whites. In 1950, for example, while Negroes con¬ criminal penalties against private action as well.
stituted 10 of the total population, Negro physicians Thus, as late as 1908, this Court enforced a state
constituted only 2.2% of the total number of criminal conviction against a private college for
physicians. The overwhelming majority of these, teaching Negroes together with whites. Berea Col¬
moreover, were educated in two predominantly Ne¬ lege V. Kentucky, 211 U.S. 45 -
gro medical schools, Howard and Meharry. By The second prong of our test — whether the
1970, the gap between the proportion of Negroes Davis program stigmatizes any discrete group or
in medicine and their proportion in the population individual and whether race is reasonably used in
 Group Justice Versus Individual Justice: Equality Problems 193

light of the program’s objectives — is clearly satisfied In addition, there is simply no evidence that
by the Davis program. the Davis program discriminates intentionally or
It is not even claimed that Davis’ program in unintentionally against any minority group which
any way operates to stigmatize or single out any not es¬
it purports to benefit. The program does
discrete and insular, or even any identifiable, non¬ tablish a quota in the invidious sense of a ceiling
minority group. Nor will harm comparable to that on the number of minority applicants to be ad¬
imposed upon racial minorities by exclusion or mitted. Nor can the program reasonably be re¬
separation on grounds of race be the likely result
garded as stigmatizing the program’s beneficiaries
of the program. It does not, for example, establish or their race as inferior. The Davis program does
an exclusive preserve for minority students apart not simply advance less qualified applicants; rather,
from and exclusive of whites. Rather, its purpose it compensates applicants, who it is uncontested
is to overcome the effects of segregation by bringing are fully qualified to study medicine, for educa¬
the races together. True, whites are excluded from tional disadvantages which it was reasonable to
participation in the special admissions program, conclude were a product of state-fostered discrim¬
but this fact only operates to reduce the number ination. Once admitted, these students must satisfy
of whites to be admitted in the regular admissions the same degree requirements as regularly admitted
students; they are taught by the same faculty in
program in order to permit admission of a rea¬
the same classes; and their performance is evaluated
sonable percentage — less than their proportion of
by the same standards by which regularly admitted
the California population’ — of otherwise underre¬ students are judged. Under these circumstances,
presented qualified minority applicants.
their performance and degrees must be regarded
Nor was Bakke in any sense stamped as
equally with the regularly admitted students with
inferior by the Medical School’s rejection of him. whom they compete for standing. Since minority
Indeed, it is conceded by all that he satisfied those
graduates cannot justifiably be regarded as less well
criteria regarded by the school as generally relevant
qualified than nonminority graduates by virtue of
to academic performance better than most of the
minority members who were admitted. Moreover, the special admissions program, there is no rea¬
sonable basis to conclude that minority graduates
there is absolutely no basis for concluding that
at schools using such programs would be stigma¬
Bakke’s rejection as a result of Davis’ use of racial tized as inferior by the existence of such programs.
preference will affect him throughout his life in the
We disagree with the lower courts’ conclusion
same way as the segregation of the Negro school-
children in Brown I would have affected them. that the Davis program’s use of race was unrea¬
sonable in light of its objectives. As petitioner
Unlike discrimination against racial minorities, the argues, there are no practical means by which it
use of racial preferences for remedial purposes does could achieve its ends in the foreseeable future
not inflict a pervasive injury upon individual whites without the use of race-conscious measures. With
in the sense that wherever they go or whatever they respect to any factor (such as poverty or family
do there is a significant likelihood that they will educational background) that may be used as a
be treated as second-class citizens because of their substitute for race as an indicator of past discrim¬
color. This distinction does not mean that the ination, whites greatly outnumber racial minorities
exclusion of a white resulting from the preferential simply because whites make up a far larger per¬
use of race is not sufficiently serious to require centage of the total population and therefore far
justification; but it does mean that the injury outnumber minorities in absolute terms at every
inflicted by such a policy is not distinguishable socio-economic level. For example, of a class of
from disadvantages caused by a wide range of recent medical school applicants from families with
government actions, none of which has ever been less than $10,000 income, at least 71% were white.’®
thought impermissible for that reason alone.

This percentage was computed from data pre¬

sented in B. Waldman, Economic and Racial Disadvan¬
’ Negroes and Chicanos alone constitute approxi¬ tage as Reflected in Traditional Medical School Selection
Factors: A Study of 1976 Applicants to U.S. Medical
mately 22% of California’s population. This percentage
was computed from data contained in Census, supra n. Schools 34 (Table A- 15), 42 (Table A-23) (Association
of American Medical Colleges 1977).
49, pt. 6, California, sec. 1, 6-4, and Table 139.
194 JUSTICE AND THE LEGAL SYSTEM

Of all 1970 families headed by a person not a high ation to race in the admissions process.
school graduate which included related children
MR. JUSTICE MARSHALL.
under 18, 80% were white and 20% were racial
minorities. Moreover, while race is positively cor¬ I agree with the judgment of the Court only
related with differences in GPA and MCAT scores, insofar as it permits a university to consider the
economic disadvantage is not. Thus, it appears race of an applicant in making admissions deci¬
that economically disadvantaged whites do not sions. I do not agree that petitioner’s admissions
score less well than economically advantaged program violates the Constitution. For it must be
whites, while economically advantaged blacks score remembered that, during most of the past 200
less well than do disadvantaged whites. These sta¬ years, the Constitution as interpreted by this Court
did not prohibit the most ingenious and pervasive
tistics graphically illustrate that the University’s
purpose to integrate its classes by compensating forms of discrimination against the Negro. Now,
for past discrimination could not be achieved by a when a State acts to remedy the effects of that
general preference for the economically disadvan¬ legacy of discrimination, I cannot believe that this
taged or the children of parents of limited education same Constitution stands as a barrier.
unless such groups were to make up the entire I
class.
Three hundred and fifty years ago, the Negro
Finally, Davis’ special admissions program was dragged to this country in chains to be sold
cannot be said to violate the Constitution simply
into slavery. Uprooted from his homeland and
because it has set aside a predetermined number
thrust into bondage for forced labor, the slave was
of places for qualified minority applicants rather
deprived of all legal rights. It was unlawful to
than using minority status as a positive factor to
teach him to read; he could be sold away from his
be considered in evaluating the applications of
family and friends at the whim of his master; and
disadvantaged minority applicants. For purposes
killing or maiming him was not a crime. The system
of constitutional adjudication, there is no difference
of slavery brutalized and dehumanized both master
between the two approaches. In any admissions
program which accords special consideration to
The denial of human
and slave.” rights was etched into
disadvantaged racial minorities, a determination of
the degree of preference to be given is unavoidable, the American Colonies’ first attempts at establish¬
ing self-government. When the colonists determined
and any given preference that results in the exclu¬ to seek their independence from England, they
sion of a white candidate is no more or less con¬
drafted a unique document cataloguing their griev¬
stitutionally acceptable than a program such as that
at Davis. Furthermore, the extent of the preference ances against the King and proclaiming as “self-
evident” that “all men are created equal” and are
inevitably depends on how many minority appli¬
cants the particular school is seeking to admit in endowed “with certain unalienable Rights,” includ¬
any particular year so long as the number of ing those to “Life, Liberty and the pursuit of
qualified minority applicants exceeds that number. Happiness.” The self-evident truths and the unal¬
ienable rights were intended, however, to apply only
There is no sensible, and certainly no constitu¬ to white men. An earlier draft of the Declaration
tional, distinction between, for example, adding a
of Independence, submitted by Thomas Jefferson
set number of points to the admissions rating of to the Continental Congress, had included among
disadvantaged minority applicants as an expression the charges against the King that
of the preference with the expectation that this will
result in the admission of an approximately deter¬ [he] has waged cruel war against human
mined number of qualified minority applicants and
setting a fixed number of places for such applicants
as was done here.
The history recounted here is perhaps too well
Accordingly, we would reverse the judgment known to require documentation. But 1 must acknowledge
of the Supreme Court of California holding the the authorities on which 1 rely in retelling it. J. Franklin,
Medical School’s special admissions program un¬ From Slavery to Freedom (4th ed. 1974) (hereinafter
constitutional and directing respondent’s admission, Franklin); R. Kluger, Simple Justice (1975) (hereinafter
as well as that portion of the judgment enjoining Kluger); C. Woodward, The Strange Career of Jim Crow
the Medical School from according any consider¬ (3d ed. 1974) (hereinafter Woodward).
 Group Justice Versus Individual Justice: Equality Problems 195

nature itself, violating its most sacred is also well established. It is of course true that
rights of life and liberty in the persons some of the Jim Crow laws (which the decisions
of a distant people who never offended of this Court had helped to foster) were struck
him, captivating and carrying them into
down by this Court in a series of decisions leading
slavery in another hemisphere, or to in¬ up to Brown v. Board of Education, 347 U.S. 483
cur miserable death in their transpor¬
(1954). See, e.g., Morgan v. Virginia, 328 U.S. 373
tation thither.
(1946); Sweatt v. Painter, 339 U.S. 629 (1950);
Franklin 88. The Southern delegation insisted that McLaurin v. Oklahoma State Regents, 339 U.S.

the charge be deleted; the colonists themselves were 637 (1950). Those decisions, however, did not au¬
implicated in the slave trade, and inclusion of this tomatically end segregation, nor did they move
claim might have made it more difficult to justify Negroes from a position of legal inferiority to one
the continuation of slavery once the ties to England of equality. The legacy of years of slavery and of
were severed. Thus, even as the colonists embarked years of second-class citizenship in the wake of
on a course to secure their own freedom and emancipation could not be so easily eliminated.
equality, they ensured perpetuation of the system
that deprived a whole race of those rights. II
The position of the Negro today in America
The implicit protection of slavery embodied
is the tragic but inevitable consequence of centuries
in the Declaration of Independence was made ex¬ of unequal treatment. Measured by any benchmark
plicit in the Constitution, which treated a slave as of comfort or achievement, meaningful equality
being equivalent to three-fifths of a person for remains a distant dream for the Negro.
purposes of apportioning representatives and taxes A Negro child today has a life expectancy
among the States. Art. I, § 2. The Constitution which is shorter by more than five years than that
also contained a clause ensuring that the “Migra¬ The Negro child’s mother is
of a white child.
tion or Importation” of slaves into the existing over three times more likely to die of complications
States would be legal until at least 1808, Art. I, §
in childbirth,’® and the infant mortality rate for
9, and a fugitive slave clause requiring that when
Negroes is nearly twice that for whites. The median
a slave escaped to another State, he must be re¬ income of the Negro family is only 60®7o that of
turned on the claim of the master. Art. IV, § 2.
the median of a white family,’* and the percentage
In their declaration of the principles that were to
of Negroes who live in families with incomes below
provide the cornerstone of the new Nation, there¬ the poverty line is nearly four times greater than
fore, the Framers made it plain that “we the
that of whites.’®
When the Negro child reaches working age,
people,” for whose protection the Constitution was
designed, did not include those whose skins were he finds that America offers him significantly less
the wrong color. As Professor John Hope Franklin than it offers his white counterpart. For Negro
has observed, Americans “proudly accepted the adults, the unemployment rate is twice that of
challenge and responsibility of their new political whites,’* and the unemployment rate for Negro
freedom by establishing the machinery and safe¬ teenagers is nearly three times that of white teen-
guards that insured the continued enslavement of
blacks.” Franklin 100.
The enforced segregation of the races contin¬
ued into the middle of the 20th century. In both U.S. Dept, of Commerce, Bureau of the Census,
94).
Statistical Abstract of the United States 65 (1977) (Table
World Wars, Negroes were for the most part con¬
fined to separate military units; it was not until
1948 that an end to segregation in the military was 13 Id., at 70 (Table 102).
ordered by President Truman. And the history of 1* U.S. Dept, of Commerce, Bureau of the Census,
the exclusion of Negro children from white public Current Population Reports, Series P-60, No. 107, p. 7
schools is too well known and recent to require (1977) (Table 1).
15 Id., at 20 (Table 14).
repeating here. That Negroes were deliberately ex¬
cluded from public graduate and professional 1* U.S. Dept, of Labor, Bureau of Labor Statistics,
44).
schools— and thereby denied the opportunity to Employment and Earnings, January 1978, p. 170 (Table

become doctors, lawyers, engineers, and the like—

196 JUSTICE AND THE LEGAL SYSTEM

agers." A Negro male who completes four years as inferior by the law. And that mark has endured.
of college can expect a median annual income of The dream of America as the great melting pot
merely $110 more than a white male who has only has not been realized for the Negro; because of
a high school diploma.’® Although Negroes rep¬ his skin color he never even made it into the pot.
resent 11.5% of the population,” they are only These differences in the experience of the
1.2% of the lawyers and judges, 2% of the phy¬ Negro make it difficult for me to accept that
sicians, 2.3% of the dentists, 1.1% of the engineers Negroes cannot be afforded greater protection un¬
and 2.6% of the college and university professors. “ der the Fourteenth Amendment where it is neces¬
The relationship between those figures and sary to remedy the effects of past discrimination.
the history of unequal treatment afforded to the In the Civil Rights Cases, [109 U.S. 3 (1883)] the
Negro cannot be denied. At every point from birth Court wrote that the Negro emerging from slavery
to death the impact of the past is reflected in the
must cease “to be the special favorite of the laws.”
still disfavored position of the Negro. 109 U.S., at 25; see supra, at 392. We cannot in
In light of the sorry history of discrimination light of the history of the last century yield to that
and its devastating impact on the lives of Negroes, view. Had the Court in that decision and others
bringing the Negro into the mainstream of Amer¬ been willing to “do for human liberty and the
ican life should be a state interest of the highest fundamental rights of American citizenship, what
order. To fail to do so is to ensure that America it did ... for the protection of slavery and the rights
will forever remain a divided society. . . . of the masters of fugitive slaves,” 109 U.S. at 53
IV (Harlan, J., dissenting), we would not need now
to permit the recognition of any “special wards.”
While 1 applaud the Judgment of the Court It is because of a legacy of unequal treatment
that a university may consider race in its admissions that we now must permit the institutions of this
process, it is more than a little ironic that, after society to give consideration to race in making
several hundred years of class-based discrimination decisions about who will hold the positions of
against Negroes, the Court is unwilling to hold influence, affluence, and prestige in America. For
that a class-based remedy for that discrimination far too long, the doors to those positions have
is permissible. In declining to so hold, today’s been shut to Negroes. If we are ever to become a
judgment ignores the fact that for several hundred fully integrated society, one in which the color of
years Negroes have been discriminated against, not
a person’s skin will not determine the opportunities
as individuals, but rather solely because of the available to him or her, we must be willing to take
color of their skins. It is unnecessary in 20th- steps to open those doors. I do not believe that
century America to have individual Negroes dem¬
anyone can truly look into America’s past and still
onstrate that they have been victims of racial dis¬ find that a remedy for the effects of that past is
crimination; the racism of our society has been so impermissible.
pervasive that none, regardless of wealth or posi¬
MR. JUSTICE BLACKMUN. . . .
tion, has managed to escape its impact. The ex¬
perience of Negroes in America has been different It is worth noting, perhaps, that governmental
in kind, not just in degree, from that of other preference has not been a stranger to our legal life.
ethnic groups. It is not merely the history of slavery We see it in veterans’ preferences. We see it in the
alone but also that a whole people were marked aid-to-the-handicapped programs. We see it in the
progressive income tax. We see it in the Indian
programs. We may excuse some of these on the
17 Ib id. ground that they have specific constitutional pro¬
tection or, as with Indians, that those benefited are
1* U.S. Dept, of Commerce, Bureau of the Census, wards of the Government. Nevertheless, these pref¬
Current Population Reports, Series P-60, No. 105, p. 198 erences exist and may not be ignored. And in the
(1977) (Table 47). admissions field, as I have indicated, educational
1’ U.S. Dept, of Commerce, Bureau of the Census, institutions have always used geography, athletic
Statistical Abstract, supra, at 25 (Table 24). ability, anticipated financial largess, alumni pres¬
20 Id., at 407-408 (Table 662) (based on 1970 sure, and other factors of that kind.
census). 1 add these only as additional components on
 Group Justice Versus Individual Justice: Equality Problems 197

the edges of the central question as to which I join

always has been there, though perhaps not con¬
my Brothers BRENNAN, WHITE, and MAR¬ ceded or even admitted. It is a fact of life, however,
SHALL in our more general approach. It is grat¬
and a part of the real world of which we are all
ifying to know that the Court at least finds it
a part. The sooner we get down the road toward
constitutional for an academic institution to take
accepting and being a part of the real world, and
race and ethnic background into consideration as
not shutting it out and away from us, the sooner
one factor, among many, in the administration of will these difficulties vanish from the scene. . . .
its admissions program. I presume that that factor

Notes and Questions

1. Wholly apart from statutory or constitutional considerations, which attorney — Cox

or Colvin— made the better “justice” argument?’’ Does your answer depend upon whether
you believe more in justice for groups or justice for individuals? What justice argument
could Cox have made to counter Colvin’s?
2. Wholly apart from statutory or constitutional considerations, did the Supreme Court
majority or the Supreme Court dissenters make the better “justice” argument? Does your
answer depend upon whether you believe more in justice for groups or justice for individuals?
3. Consider the following hypothetical:

A state sets up a licensing procedure for automobile drivers. First, a license is

awarded to any applicant who passes a driver’s test with a score of 70% or better (and
pays a fee and meets other criteria, such as being a resident of the state — these other
qualifications will be omitted in the further discussion of this problem). These drivers
will be called Group A. Second, a license is awarded to any member of a minority or
underprivileged group who scores above 40% in the driver’s test; we will call these
drivers Group B. Both groups A and B get exactly the same license.
(a) Should a member of Group A be able to sue the licensing board for
discrimination? Is there any “quota” system here?
(b) Should a driver who gets a score of 60%, but is not a member of a

minority or underprivileged group, be able to sue the licensing board for discrim¬
ination in not awarding him a license? Is there any “quota” system here?
(c) Suppose a pedestrian is hit by a car driven by a member of Group B.
Should the pedestrian be allowed to bring up in court the fact that the driver
scored less than 70% on the driver’s test and therefore is presumably not a good
driver?

(d) What statistics would “count” in justifying the state’s licensing scheme:
(i) That most of the people who administer the driving tests are white majority

2’ For a thorough review of the contemporary positions on the justice of affirmative action, see M. Rosenfeld,
Affirmative Action and Justice: A Philosophic and Constitutional Inquiry (1991). In addition to the usual
liberal paradigms for analyzing questions of distributive and corrective justice (libertarianism, utilitarianism,
contractarianism, and egalitarianism), Rosenfeld deploys a conception drawn from Habermas and Kohlberg: justice
as reversible reciprocity.
198 JUSTICE AND THE LEGAL SYSTEM

persons? (ii) That minority and underprivileged drivers are a lower

percentage of
all drivers than minority and underprivileged persons are
a percentage of all
citizens? (iii) That minority and underprivileged young persons come
from families
that are not likely to have cars, and so they have less familiarity
with driving than
do other people and hence should be allowed a lower score on the driving
test?
(e) What policy considerations would “count” in justifying the state’s licensing
scheme: (i) The state wants to reduce the preponderance of minority and under¬
privileged persons riding the buses and subways by making it easier for many
of
them to drive cars? (ii) The state wants more minority and underprivileged drivers
of cars to serve as “role models” for other members of those groups?
(iii) It’s
part of the reparations society is paying and should be paying for the pre-Civil
War slavery system?

(f) Can it be argued that a score of 4007o on the drivers’ test is enough for
competence” as a driver? (This is the same as saying that there is a “threshold”
of driving competence at a given score level.) If so, why does the state have a
score of 70% for the majority of driving applicants? Do they want to keep down
the number of cars on the road? Is it likely that states would restrict the number
of cars for no reason other than to reduce traffic? Doesn’t the state get a substantial
part of its revenue from the automotive culture (license fees, registration fees, sales
tax on new and used car sales, gasoline tax, tolls)? On the other hand, what if
the state simply wants to reduce the number of accidents! Suppose it finds an
inverse correlation between the score on the drivers’ test and the number of auto¬
mobile accidents? (Thus, if the passing score were raised from 70% to 80%, the
number of automobile accidents would go down.) Does this make it harder to
justify the Group B drivers?

4. The hypothetical in Question 3 is, of course, different in many respects from the
medical-school admissions scheme at Davis in the Bakke case. In what important and relevant
aspects is it similar to Bakke!

5. Is there a “threshold” of medical competence or legal competence in medical schools

or law schools? Do the schools compete for entering students with the best test scores and
college credentials not because those students are the only ones with enough talent to become
doctors or lawyers, but simply because they will probably be better and more successful
doctors and lawyers than other candidates for admission?
6. When we think of a person as a member of a class, do we consciously think of
how many classes any given person is a member of? Mr. X may be a member of:

— the class of all white anglo-saxon protestants;

— the class of all red-heads;
— the class of all former boy scouts;
— the class of all Republicans;
— the class of all persons who wear eye glasses;
— the class of all persons who have ever been in an automobile accident;
— the class of all persons whose signature is illegible;
— the class of all women who like beer;
 Group Justice Versus Individual Justice: Equality Problems 199

— the class of all poets;

— the class of all persons born on Christmas day.

Depending on how we define a given class, we can invent an endless list of classes to
which we belong. Is our individuality simply a product of the intersection of all the classes
to which we belong? Certainly it is impossible for any two persons to belong to exactly the
same classes (even identical twins belong to at least two different classes: the class of first¬
born identical twins and the class of all second-born identical twins). If we add up all the
conceivable classes to which we belong, can there be anything left that we could call our
“own” personality? Does it matter?
Consider, however, the position of a party to a lawsuit. Won’t that party necessarily
be considered a member of a class of persons by the judge who is deciding the case? The
judge, after all, wants to decide the case in such a way that it will both accord with existing
precedent and serve as a good precedent for future cases. But isn’t the only way to determine
the precedent-value of the case to consider the parties as members of a class of potential
persons with the same legal problem?
Isn’t the class of persons with the same legal problem the inevitable class that every
litigant is made a member of — whether the litigant likes it or not?
If so, can the judge possibly avoid deciding the case by reference to the class or category
in which the litigant falls? Or to put the matter bluntly, is the individual-vs. -group distinction,
and the possible bias that accompanies it, an inherent part of all litigation?

5.2 Should individual justice trump group justice?

City of Los Angeles Department

of Water and Power v. Manhart
435 U.S. 702
Supreme Court of the United States
April 25, 1978
STEVENS, J., delivered the opinion of the no part in the consideration or decision of the
Court, in which STEWART, WHITE, and POW¬ case.
ELL, JJ., joined, in all but the retroactivity rul¬ David J. Oliphant argued the cause for peti¬
ing, of which MARSHALL, J., joined, and in tioners. With him on the briefs were Burt Pines
the retroactivity ruling of which BURGER, C.J., and J. David Hanson.
and BLACKMUN and REHNQUIST, JJ., joined. Robert M. Dohrmann argued the cause for
BLACKMUN, J., filed an opinion concurring in respondents. With him on the brief were Kenneth
part and concurring in the judgment. BURGER, M. Schwartz, Laurence D. Steinsapir, Howard M.
C.J., filed an opinion concurring in part and dis¬ Knee, and Katherine Stoll Burns.
senting in part, in which REHNQUIST, J., joined. Briefs of amici curiae urging reversal were
MARSHALL, J., filed an opinion concurring in filed by James A. Redden, Attorney General, A1
part and dissenting in part. BRENNAN, J., took J. Laue, Solicitor General, and William F.
200 JUSTICE AND THE LEGAL SYSTEM

Hoelscher, Assistant Attorney General, for the own experience, the Department determined that
State of Oregon; and by Harry L. Du Brin, Jr., its 2,000 female employees, on the average, will
for the New York State Teachers’ Retirement Sys¬ live a few years longer than its 10,000 male
tem.
employees. The cost of a pension for the average
Briefs of amici curiae urging affirmance were retired female is greater than for the average male
filed by Solicitor General McCree for the United retiree because more monthly payments must be
States et al; by Ruth Bader Ginsburg for the made to the average woman. The Department
American Civil Liberties Union et al; by Jonathan therefore required female employees to make
R. Harkavy for the American Nurses’ Assn.; by monthly contributions to the fund which were
Marguerite Rawalt for the Association for Women 14.84% higher than the contributions required of
in Mathematics; and by John A. Pillion for the comparable male employees. Because employee
International Union, United Automobile, Aero¬ contributions were withheld from paychecks, a
space & Agricultural Implement Workers of female employee took home less pay than a male
America.
employee earning the same salary.
There are both real and fictional differences
MR. JUSTICE STEVENS delivered the
between women and men. It is true that the aver¬
opinion of the Court.
age man is taller than the average woman; it is
As a class, women live longer than men. For not true that the average woman driver is more
this reason, the Los Angeles Department of Water accident prone than the average man. Before the
and Power required its female employees to make Civil Rights Act of 1964 was enacted, an employer
larger contributions to its pension fund than its could fashion his personnel policies on the basis
male employees. We granted certiorari to decide of assumptions about the differences between men
whether this practice discriminated against indi¬ and women, whether or not the assumptions were
vidual female employees because of their sex in valid.
violation of § 703(a) (1) of the Civil Rights Act It is now well recognized that employment
of 1964, as amended.
decisions cannot be predicated on mere “stereo¬
For many years the Department has admin¬
typed” impressions about the characteristics of
istered retirement, disability, and death-benefit males or females. Myths and purely habitual
programs for its employees. Upon retirement each
assumptions about a woman’s inability to perform
employee is eligible for a monthly retirement ben¬ certain kinds of work are no longer acceptable
efit computed as a fraction of his or her salary reasons for refusing to employ qualified individ¬
multiplied by years of service. The monthly ben¬ uals, or for paying them less. This case does not,
efits for men and women of the same age, sen¬ however, involve a fictional difference between
iority, and salary are equal. Benefits are funded men and women. It involves a generalization that
entirely by contributions from the employees and the parties accept as unquestionably true: Women,
the Department, augmented by the income earned
as a class, do live longer than men. The Depart¬
on those contributions. No private insurance com¬ ment treated its women employees differently from
pany is involved in the administration or payment its men employees because the two classes are in
of benefits.
fact different. It is equally true, however, that all
Based on a study of mortality tables and its individuals in the respective classes do not share
the characteristic that differentiates the average
class representatives. Many women do not live as
long as the average man and many men outlive
22 The section provides: the average woman. The question, therefore, is
“It shall be an unlawful employment practice for
an employer —
“(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any indi¬
vidual with respect to his compensation, terms, condi¬ 23 The significance of the disparity is illustrated by
tions, or privileges of employment, because of such the record of one woman whose contributions to the
individual’s race, color, religion, sex, or national ori¬ fund (including interest on the amount withheld each
month) amounted to $18,171.40; a similarly situated
...”
gin.Stat. male would have contributed only $12,843.53.
78 255, 42 U.S.C. § 2000e-2 (a)(1).
 Group Justice Versus Individual Justice: Equality Problems 201

whether the existence or nonexistence of “dis¬

or national origin, as well as sex.^^ But a statute
crimination” is to be determined by comparison that was designed to make race irrelevant in the
of class characteristics or individual characteris¬ employment market . . . could not reasonably be
tics. A “stereotyped” answer to that question may construed to permit a take-home-pay differential
not be the same as the answer that the language based on a racial classification.^*
and purpose of the statute command. Even if the statutory language were less clear,
the basic policy of the statute requires that we
The statute makes it unlawful “to discrim¬
inate against any individual with respect to his focus on fairness to individuals rather than fair¬
ness to classes. Practices that classify employees
compensation, terms, conditions, or privileges of
in terms of religion, race, or sex tend to preserve
employment, because of such individual’s race, traditional assumptions about groups rather than
color, religion, sex, or national origin.” The sta¬ thoughtful scrutiny of individuals. The generali¬
tute’s focus on the individual is unambiguous. It zation involved in this case illustrates the point.
precludes treatment of individuals as simply com¬ Separate mortality tables are easily interpreted as
ponents of a racial, religious, sexual, or national reflecting innate differences between the sexes; but
class. If height is required for a job, a tall woman a significant part of the longevity differential may
may not be refused employment merely because, be explained by the social fact that men are heavier
smokers than women.
on the average, women are too short. Even a true
generalization about the class is an insufficient Finally, there is no reason to believe that
reason for disqualifying an individual to whom Congress intended a special definition of discrim¬
ination in the context of employee group insurance
the generalization does not apply.
coverage. It is true that insurance is concerned with
That proposition is of critical importance in events that are individually unpredictable, but that
this case because there is no assurance that any is characteristic of many employment decisions.
individual woman working for the Department Individual risks, like individual performance, may
will actually fit the generalization on which the
not be predicted by resort to classifications pro¬
Department’s policy is based. Many of those indi¬ scribed by Title VII. Indeed, the fact that this case
viduals will not live as long as the average man. involves a group insurance program highlights a
While they were working, those individuals basic flaw in the Department’s fairness argument.
received smaller paychecks because of their sex, For when insurance risks are grouped, the better
but they will receive no compensating advantage risks always subsidize the poorer risks. Healthy
when they retire. persons subsidize medical benefits for the less
healthy; unmarried workers subsidize the pensions
It is true, of course, that while contributions
are being collected from the employees, the
Department cannot know which individuals will
predecease the average woman. Therefore, unless
women as a class are assessed an extra charge,
For example, the life expectancy of a white baby
they will be subsidized, to some extent, by the in 1973 was 72.2 years; a nonwhite baby could expect
class of male employees. It follows, according to to live 65.9 years, a difference of 6.3 years. See Public
the Department, that fairness to its class of male Health Service, IIA Vital Statistics of the United States,

employees justifies the extra assessment against 1973, Table 5-3.

all of its female employees. 25 Fortifying this conclusion is the fact that some
States have banned higher life insurance rates for blacks
But the question of fairness to various classes since the 19th century. See generally M. James, The
affected by the statute is essentially a matter of Metropolitan Life — A Study in Business Growth 338-
policy for the legislature to address. Congress has 339 (1947).
decided that classifications based on sex, like 26 See R. Retherford, The Changing Sex Differ¬
ential in Mortality 71-82 (1975). Other social causes,
those based on national origin or race, are unlaw¬
such as drinking or eating habits — perhaps even the
ful. Actuarial studies could unquestionably iden¬
lingering effects of past employment discrimination —
tify differences in life expectancy based on race may also affect the mortality differential.
202 JUSTICE AND THE LEGAL SYSTEM

of married workers;^^ persons who eat, drink, or of employees involved in this case is composed
smoke to excess may subsidize pension benefits for entirely and exclusively of members of the same
persons whose habits are more temperate. Treating sex. On its face, this plan discriminates on the
different classes of risks as though they were the basis of sex whereas the General Electric plan
same for purposes of group insurance is a common discriminated on the basis of a special physical
disability.
practice that has never been considered inherently
unfair. To insure the flabby and the fit as though The Department challenges the District
they were equivalent risks may be more common Court’s award of retroactive relief to the entire
than treating men and women alike;^“ but nothing class of female employees and retirees. . . . ^’ [W]e
more than habit makes one “subsidy” seem less conclude that it was error to grant such relief in
fair than the other. this case. Accordingly, although we agree with the
An employment practice that requires 2,000
Court of Appeals’ analysis of the statute, we vacate
individuals to contribute more money into a fund its judgment and remand the case for further pro¬
than 10,000 other employees simply because each ceedings consistent with this opinion.
of them is a woman, rather than a man, is in It is so ordered.
direct conflict with both the language and the
policy of the Act. Such a practice does not pass MR. JUSTICE BLACKMUN, concurring in
the simple test of whether the evidence shows part and concurring in the judgment.
“treatment of a person in a manner which but for A program such as the one challenged here
that person’s sex would be different.” It constitutes does exacerbate gender consciousness. But the pro¬
discrimination and is unlawful unless exempted by
gram under consideration in General Electric [Gil¬
the Equal Pay Act of 1963 or some other affir¬ bert] did exactly the same thing and yet was upheld
mative justification. . . . against challenge.
The Department argues that reversal is re¬
The Court’s distinction between the present
quired by General Electric Co. v. Gilbert, 429 U.S.
case and General Electric — that the permitted clas¬
125. We are satisfied, however, that neither the
ses there were “pregnant women and nonpregnant
holding nor the reasoning of Gilbert is controlling.
persons,” both female and male, seems to me to
In Gilbert the Court held that the exclusion
be just too easy.” It is probably the only distinction
of pregnancy from an employer’s disability benefit that can be drawn. For me, it does not serve to
plan did not constitute sex discrimination within distinguish the case on any principled basis. I
the meaning of Title VII. . . . [T]he Court first held
therefore must conclude that today’s decision cuts
that the General Electric plan did not involve “dis¬ back on General Electric. I do not say that this is
crimination based upon gender as such.” The two necessarily bad. If that is what Congress has chosen
groups of potential recipients which that case con¬ to do by Title VII — as the Court today with such
cerned were pregnant women and nonpregnant per¬ assurance asserts — so be it. I feel, however, that
sons. “While the first group is exclusively female, we should meet the posture of the earlier cases
the second includes members of both sexes.” 429 head on and not by thin rationalization that seeks
U.S., at 135. In contrast, each of the two groups to distinguish but fails in its quest.

MR. CHIEF JUSTICE BURGER, with

27 A study of life expectancy in the United States

for 1949-1951 showed that 20-year-old men could expect
to live to 60.6 years of age if they were divorced. If 2’ We consider the retroactivity branch of Manhart
married, they could expect to reach 70.9 years of age, in Question 3 at the end of Section 7.2. [Eds.]
a difference of more than 10 years. Id., at 93. 30 It is of interest that Mr. Justice Stevens, in his
2» The record indicates, however, that the Depart¬ dissent in General Electric, strongly protested the very
distinction he now must make for the Court. It is not
ment has funded its death-benefit plan by equal con¬
tributions from male and female employees. A death accurate to describe the program as dividing “potential
benefit — unlike a pension benefit — has less value for recipients into two groups — pregnant women and non¬
persons with longer life expectancies. Under the Depart¬ pregnant persons.” The classification is between persons
ment’s concept of fairness, then, this neutral funding who face a risk of pregnancy and those who do not.
of death benefits is unfair to women as a class. 429 U.S., at 161-162, n. 5.
 Group Justice Versus Individual Justice: Equality Problems 203

whom MR. JUSTICE REHNQUIST joins, con¬ all of the unknown reasons, whether biologically
curring in part and dissenting in part.
or culturally based, or both, which give women a
Gender-based actuarial tables have been in significantly greater life expectancy than men. It is
use since at least 1843, and their statistical validity therefore true as the Court says, “that any indi¬
has been repeatedly verified. The vast life insur¬ vidual’s life expectancy is based on a number of
ance, annuity, and pension plan industry is based
factors, of which sex is only one.” But it is not
on these tables. As the Court recognizes, it is a
true that by seizing upon the only constant, “meas¬
fact that “women, as a class, do live longer than urable” factor, no others were taken into account.
men.” It is equally true that employers cannot know All other factors, whether known but variable — or
in advance when individual members of the classes unknown — are the elements which automatically
will die. Yet, if they are to operate economically account for the actuarial disparity. And all are
accounted for when the constant factor is used as
workable group pension programs, it is only ra¬
tional to permit them to rely on statistically sound a basis for determining the costs and benefits of
and proved disparities in longevity between men a group pension plan.
and women. Indeed, it seems to me irrational to This is in no sense a failure to treat women
assume Congress intended to outlaw use of the as “individuals” in violation of the statute, as the
fact that, for whatever reasons or combination of Court holds. It is to treat them as individually as
reasons, women as a class outlive men. it is possible to do in the face of the unknowable
length of each individual life. Individually, every
The Court’s conclusion that the language of
the civil rights statute is clear, admitting of no woman has the same statistical possibility of out¬
advertence to the legislative history, such as there living men. This is the essence of basing decisions
was, is not soundly based. An effect upon pension on reliable statistics when individual determinations
are infeasible.
plans so revolutionary and discriminatory — this
time favorable to women at the expense of men — Of course, women cannot be disqualified
should not be read into the statute without either from, for example, heavy labor just because the
a clear statement of that intent in the statute, or generality of women are thought not as strong as
some reliable indication in the legislative history men — a proposition which perhaps may sometime
that this was Congress’ purpose. be statistically demonstrable, but will remain in¬
The reality of differences in human mortality dividually refutable. When, however, it is impos¬
is what mortality experience tables reflect. The sible to tailor a program such as a pension plan
difference is the added longevity of women. All to the individual, nothing should prevent applica¬
the reasons why women statistically outlive men tion of reliable statistical facts to the individual,
are not clear. But categorizing people on the basis for whom the facts cannot be disproved until long
of sex, the one acknowledged immutable difference after planning, funding, and operating the program
between men and women, is to take into account have been undertaken.

Notes and Questions

1. Is the “discrimination” in Manhart simply the overt classification according to

gender? Suppose instead of “women” the Department had asked of the applicants for the
pension program, “are you or have you ever been biologically capable of becoming preg¬
nant?” Would/should that make a difference? How did the Court react to this type of
argument in the General Electric case that the Court Cited?
2. The Manhart case concerned pensions and annuities. The two work roughly the
same way. Both provide the insured, upon retirement, with a set monthly income. If a
woman has a longer life expectancy than a man, the insurer will accordingly expect to be
paying her a higher total of monthly payments. Hence — simply because of the fact that she
is a woman — the insurer will want to charge her a higher contribution amount toward her
204 JUSTICE AND THE LEGAL SYSTEM

pension program while she is employed.

If instead a woman bought life insurance, would she also
be expected to pay a higher
rate? No, because life insurance is only paid when the insured
dies, and since an insured
woman has a longer life expectancy, the insurance company
will be able to put off paying
her for a longer period of time than it would have to pay an insure
d man. Thus, a woman
should be able to purchase life insurance at a lower rate than would
a man.
Now that Manhart has required the State of California to charge equal
contributions
from men and women for annuities, should the law require life insuran
ce companies to
raise their rates for women?

Consider also drivers’ insurance. At the same age levels for young drivers
(under 25),
women drivers have fewer accidents than men drivers. As a result, automobile insuran
ce is
cheaper for women than for men. Does Manhart now require that automobile insuran
ce
rates for women be raised?^’
Might the total result of the elimination of gender-based classifications make insurance
more expensive for women? Should the Supreme Court be barging into this complex area
of insurance on the basis of a single case?
3. Sometimes individuals purchase unique insurance for themselves — such as a model
insuring her face, or a pitcher insuring his arm. The insurer in such a situation evaluates
all the characteristics (risk-proneness, lifestyle, etc.) of the insured, and determines an
insurance premium for the insured to pay. If the premium reflects the exact discounted risk
of the insured event, then the only reason the individual will take out the insurance is that
he or she is more risk-averse than the insurance company — for, economically speaking, there
is no net benefit in the insurance for either the insurer or the insured. However, if the
insurance company sets a premium that exceeds the exact discounted risk of the insured
event, then it will make an actuarial profit on the transaction, although it will be a poor
business deal for the insured person. If the insured person is highly risk-averse, he or she
may want the insurance anyway. In addition, there may be publicity value (a famous actress
insures her legs, enabling her press agent to say that she has “million-dollar legs.”)
4. Most insurance is not of the “unique” sort, but rather is a form of group insurance.
For example, automobile insurance is based on the insurance company’s calculation that it
will in the aggregate pay out an expected dollar amount of claims if it insures all drivers.
If an individual driver does not get into an accident, she will not complain that she made
a bad bargain; rather, she will be glad to have avoided being injured.
Why don’t insurance companies simply insure all drivers at the same rate, treating them
all as “persons” under the law. Suppose insurance company A does precisely this, charging
every driver, say, $400 a year. Then suppose insurance company B wishes to compete with
A. B decides to have two groups of insured persons: male drivers under 25 years old who
are charged $500 a year, and all other drivers who are charged $300 a year. What now

31 “One study showed that if sex were eliminated as a variable, young female drivers’ automobile insurance
rates would increase 26% and young male drivers’ rates would decrease 6% (females are only 24% of the youthful
driving population).’’ Abraham, Efficiency and Fairness in Insurance Risk Classification, 71 Va. L. Rhv. 403, 439
(1985), citing National Ass’n of Ins. Comm’rs, D-3 Advisory Comm., Private Passenger Automobile Insurance
Risk Classification 26 (1979).
 Group Justice Versus Individual Justice: Equality Problems 205

happens to the competition between A and B?

Clearly the male drivers under 25 years of age will flock to company A and sign up

for A’s insurance at $400 a year, because it is less than B’s rates by $100. All other drivers
will flock to company B, because B’s rates are significantly cheaper for them.
Now, if B is right in choosing its class — that is, if B’s overall accident payouts are
significantly less because there are no male drivers under 25 years of age who have signed
up with B, then B will profit considerably. But A has lost its careful drivers, and is saddled
only with the riskier drivers who are under 25 years old and are male. Its payouts will
skyrocket.
Thus we see that it was eminently rational for company B to make the group distinction,

and irrational for company A to maintain its one-class program in the face of B’s two-
class program. A could go bankrupt quickly unless it changes to B’s system. Normal market
forces dictate that, as soon as a rational classification is discovered by any insurance
company, all other insurance companies in the same field will — almost immediately — adopt
the same classification.”
5. Consider the lower insurance rates for teen-age male drivers whose grades in high
school are B or higher. Why should insurance companies have invented a classification for
driving, where above-B gets a lower rate and below-B is charged a higher rate? What does
academic excellence have to do with the risk of automobile accidents? See if you can list
two or three factors that would make this a rational classification.
6. Suppose an automobile insurance company makes a classification based on the
religion of the insured, and deliberately charges a higher rate to persons of a particular
religion. Should the courts step in and invalidate such a classification? Won’t market forces
do the same thing? Recall Question 3: there the classification worked because it was related
to accident-proneness. Here, if a company makes a classification that is not related to
accident-proneness, it will lose out in the competition with other insurers. The persons of
the religious group charged the higher rates will go to competing insurers, and if they are
good drivers (which is our assumption, because we are saying that the classification is not
related to accident-proneness), they will increase the profitability of the insurance company
that they go to, whereas the insurance company that discriminated against them will lose
a group of good drivers and hence will be hurt in terms of profitability.
Thus, insurance companies are trying to maximize their profit, we should expect them
to make classifications that are related to the risk they are insuring against, and to avoid
all other classifications.
What if a given classification is related to the insured risk, but also happens to be a
discriminatory classification? Isn’t that the situation in the Manhart case?

32 Note that the more immediately all the other companies adopt the same classification, the less incentive
exists for any one company to invent the classification. Inventing a rational classification involves research and
overhead time, which is costly. Hence, it is possible that some rational classifications are not made at all. For
instance, there was a time when life insurance rates were the same for women as for men. This was irrational
given the disparity in longevity, but until one company implemented the classification change, the others had no
real incentive to investigate or institute it. In some respects, the Manhart case may have been motivated by a
reaction against past discriminatory insurance practices toward women.
206 JUSTICE AND THE LEGAL SYSTEM

7. How do you deal with the “individual vs. group” argument

in Manhart that even
though women as a class might live longer than men, this
is not necessarily true of any
given individual woman hence it is unfair to charge an individ
ual woman a rate based
upon group characteristics?
Wouldn t the same argument be true if a company only had female employ
ees? Some
individual employees will live longer than the group average, some less
long. Aren’t the
latter being overcharged?

Is the individual vs. group” argument simply a misreading of what

is meant by group
insurance? Don t the “lucky” individuals always subsidize the “unlucky” individ
uals within
any group insurance system? If so, why does the Manhart court seem to think that
the
argument changes if there is a gender distinction between groups?
8. Consider the questions and issues raised in the following transcript of a classroo
discussion. m

Classroom Dialogue

Cardozo Law School, New York City, October 22, 1986

Course in JUSTICE (experimental course)
Professor Arthur Jacobson, Yeshiva University
Professor Anthony D’Amato, Northwestern University

PROF. JACOBSON. Let’s say we discover that there’s a category of persons in a group
medical insurance plan for which the insurance, in a statistical predictive sense, would cost
more. In other words, they are more likely to draw from the pot, statistically. Let’s say,
women on medical insurance because women have more medical problems if you define
pregnancy and birth as a female medical problem, okay? That’s another hot case now in
California. Why should women pay more for medical insurance because they have all the
problems associated with reproductive systems?

PROF. D’AMATO. Are you saying it’s unfair only to men who aren’t pregnant? Have they
came up with a California male who’s pregnant?
PROF. JACOBSON. Right.

PROF. D’AMATO. I always knew they were innovative out there in California.
(LAUGHTER)
PROF. JACOBSON. Actually I prefer the pregnancy problem because, first of all, you find
it much more difficult to argue that one, emotionally.
(LAUGHTER)
Second of all, 1 think it’s clearly for the benefit of the species, right, that women are
doing this for us, uh, whatever you want to call it. There’s a clear sort of species benefit
argument there which even the most hard-boiled, mean-spirited, economistic male probably
could buy, all right?
 Group Justice Versus Individual Justice: Equality Problems 207

(LAUGHTER)

Now, let’s say the group decides that we’re not going to saddle women with that burden
and charge them more for the insurance fund. Even though it would be economically rational
to do so. So, all the Court is saying in Manhart, it seems to me, is that we the public have
made such a decision and have voted a statute that says even though this would be a category
where it would be economically rational to charge women more, we have decided that the
Department cannot do so. They cannot use that category.

PROF. D’AMATO. But why should an insurance company — or a group of persons that
decides to set up a group insurance plan — do that which is economically irrational?
STUDENT. For all the reasons Professor Jacobson said.

PROF. D’AMATO. Fine. Then my point is; if instead the group decides to do that which
is economically rational, how can the Court say that they are discriminating against women?

ANOTHER STUDENT. I think the pregnancy example — the pregnancy cases — the voluntary
ones as opposed to the involuntary ones like how long you live — maybe the involuntary
ones are a product of voluntary factors like supposedly whether you smoke, whether you
drink —

ANOTHER STUDENT. You know bringing in pregnancy, it’s more of a, you know, it takes
two — you know that somewhere there’s a man, a man involved, and it’s more likely that
that pers — that that man is involved in the female and —
(LAUGHTER)
that no matter which way you carved the benefits, whether you say that women are going
to pay more or that men are going to pay the same, it wilt probably be going to end up
the same if they’re in a family structure. So —
PROF. JACOBSON. In other words, if you have a female wage earner and a male wage
earner, if one is getting screwed, the other will balance it out in your argument.
(LAUGHTER)
STUDENT. However, you know that if you do certain things you will get pregnant whereas
you know, you can be sure about, it’s more than likely —
PROF. JACOBSON. If you smoke you’re more likely to die sooner than if you don’t smoke.
STUDENT. And insurance reflects other factors like whether you smoke or not or, they
require a physical exam, and to an extent, by allowing that voluntary act to be a burden
on other people, you’re creating like an involuntary servitude in fact on men because they
don’t —
PROF. JACOBSON. Well, that’s the individualist argument, that’s correct. That is the
individualist argument. Does anybody have a counter to that?

PROF. D’AMATO. You made it yourself. It’s the group argument. You’re saying that if
people want to purchase insurance, the government can come along to the men in the group
and say to them, “You’re being unfair to women,’’ and levy a tax on the men that consists
of a transfer payment — a subsidy from the men in the group to the women in the group,
so that when the annuities are paid out the women as a whole can get more money out
than they put in.
208 JUSTICE AND THE LEGAL SYSTEM

PROF. JACOBSON. First of all, I agree with you that it’s a transfer
payment. The insurance
scheme as a whole is a transfer payment. In your system, the transfe
r payments go to the
persons who suffer the insurable event. You think it’s fair that they
should get the money.
The logical consequence of your statement is that we should all pay if we
all believe in the
justice of the transfer payment. So in your scheme, justice consists
of paying the persons
who suffer the insured event. In my scheme, justice consists also of paying
groups that are
discriminated against.

PROF. D’ AMATO. Why is that just?

PROF. JACOBSON. It’s like the Soviet Union which has state insurance and state insuranc
e
only for the vicissitudes of life and I think that may be correct. In other words, I think
the system of private insurance may be simply an anachronism.

PROF. D’AMATO. Then maybe we should address the problem at the level of capitalism
versus socialism.

PROF. JACOBSON. However, I could defend the system of private insurance. Under either
system we’d still have the problem of who should pay.

PROF. D’AMATO. Now you seem to be agreeing with me that the case may not have been
correctly decided.

PROF. JACOBSON. Oh no. There was a statute, whether you believe the statute was correct
or not, I believe that the statute clearly forbids using gender as a category in the annuity
plan.

PROF. D’AMATO. Why? The statute forbids using gender as a category for discrimination,
and what I’m saying is that there is no discrimination here because the relevant question
is “Who lives longer?’’ and the answer is women. There is nothing “discriminatory” about
that, except that the insurance scheme has to make certain distinctions based on membership
in groups that have certain actuarial life expectancies.

PROF. JACOBSON. Is a longer life expectancy the same kind of distinction as ability to
become pregnant? Yes?

STUDENT. I think you made the argument before which was that women bearing children
is done for the betterment of the whole world —

ANOTHER STUDENT. That’s a decision society makes and either way —

PROF. JACOBSON. Who is society? Can you tell me his phone number?

STUDENT. It’s a majority, it’s the majority who make the decisions. It’s the people who
make the decisions. It’s the Congress who enacts the statute or the Supreme Court who
decides the case.

PROF. D’AMATO. I suggest that it’s the society of all the people who want to get together
and have insurance and this is your group. Of course it’s a group because insurance is a
group phenomenon. What we’re really saying is that everybody in this group is going to
contribute to a pot so that those individuals who are adversely affected are going to be

paid by those who aren’t adversely affected.

PROF. JACOBSON. Okay how about this? Right now the pensions are done employer by
 Group Justice Versus Individual Justice: Equality Problems 209

employer. What if all women got together, instead of employer by employer — all women
decided to get together and insure themselves? Or, vice versa, all men said, “The hell with
the women, they live longer. We’ll get together, cut them out and have the men’s annuity.’’
PROF. D’AMATO. Fine, that’s what’s good about this system that we have — that we can
do that — whereas in the Soviet Union — which is the system you seem to prefer — they can’t
do that.
(LAUGHTER)

PROF. JACOBSON. 1 don’t believe we’re free to do that, either. It may be unconstitutional
under the Manhart case.

PROF. D’AMATO. Look, we have people in this country who are high-risk drivers who
can’t get insurance. There’s nothing wrong with those high-risk drivers all getting together
and setting up their own insurance company and insuring themselves. They will soon discover
that they will have to pay high premiums because every one of them is a high-risk driver.
But surely that’s fair! That’s what we want. It’s just that the insurance company, by proxy,
is doing the same thing when it charges these people higher insurance rates. There’s no evil
insurance company gouging people here. The Department in the Manhart case was not
acting out of evil or discriminatory motives. It was charging women higher rates because
it knows that it wilt have to make more annuity payments to them than to men.

PROF. JACOBSON. Okay, so it doesn’t matter whether it’s state or private?

PROF. D’AMATO. That’s right.
PROF. JACOBSON. Because every — any rational person will come to the same result?

PROF. D’AMATO. That’s roughly what happens.

PROF. JACOBSON. The Soviet Union reference is a canard, at that point.

PROF. D’AMATO. If the Soviet Union charges bad drivers more money, they would be
operating like a private enterprise. But they probably don’t do that. Marxism itself — for
all the long and complicated writings of Marx and Engels — reduces to a two-word theory:
universal insurance. Marxism simply says that everyone will be insured — to each according
to his needs. And to convince the reader, Marx and Engels plug in every social value you
can think of — not just the nondiscriminatory ones you like. It’s an arbitrary paternalistic
system. As soon as we start plugging in social values, we have to (a) justify the values,

and (b) answer “Where do you draw the line?’’ How about political affiliations, for example?
Sooner or later that will come up. Once you open the door to making arbitrary distinctions,
you’re off interfering with the system for political ends. In Manhart, the people whose ox
is being gored are the males who are paying higher insurance rates — who are being told
that as to this characteristic, male versus female, the Supreme Court is not going to let the
insurance company be rational.
PROF. JACOBSON. Economically rational.

PROF. D’AMATO. Right — economically rational, which means the Supreme Court is forcing
males to engage in involuntary transfer payments to females. But the transfer payments
are justified because nice people, like Professor Jacobson, think that women should get a
break.
210 JUSTICE AND THE LEGAL SYSTEM

PROF. JACOBSON. All right, as long as you are accusing me of being a collectivist, let
me take it all the way. How about the notion, which I think would be a communist notion,
that to divide up the human group at all is to bite the apple that leads to shame. In other
words, you are not permitted to create any categories because as soon as you create a
category, you’re departing from the pure notion of insurance which is that we all should
pay for the misfortunes of a single one. In other words, the only legitimate category is the
group versus the individual.

PROF. D’AMATO. Fine. I’ll bite. I’m glad you asked that question. “Why divide up the
human being at all according to categories?” And then ask, “Why should the government
divide people up into categories?” For me, the evil here is when the government — the Supreme
Court, Washington, D.C. — when they divide people into categories, that’s the evil. But
when people get together, voluntarily without any government involved, and divide them¬
selves up into categories, I believe that’s all right because other people can choose to go
into other categories. For example, if you want to set up your own religion, and I don’t
like it, I don’t have to join yours — I can set up my own. What’s bad is when the government
sets up a religion. That’s what’s happening in this case — the government is engaging in
forced categorization. It’s true that in this case they’re dissolving a category, men against
women, not setting one up, but it amounts to exactly the same thing. They’re saying the
category shall now and forever be “people” and not “men or women.” The government is
not going to let private groups make certain kinds of classifications. And if you allow the
government to get away with it, tomorrow they will tell you that the new category is
“Republicans or Democrats,” and each group will have to pay the same total taxes, so if
you voted for the losing party in the last election your individual tax rate will be higher
because your group total has to come out the same as that of the other party. And next
year it will be “vegetarians,” and someday “Communist Party members” and —
PROF. JACOBSON. Wait a—

PROF. D’AMATO. — and you’re into the category business by official decree and that’s
what I’m against.
PROF. JACOBSON. First of all, I reject the idea that there’s a slippery slope. The statute
is very clear and very limited. The Civil Rights Act of 1964 says that we shall not discriminate
and these are the fundamental American principles.

PROF. D’AMATO. Natural origin is okay though, right? Because we discriminate that way
in our immigration laws.

PROF. JACOBSON. I’m not sure if it’s okay.

PROF. D’AMATO. Well, that’s what I’m saying, it’s not okay but we discriminate in our
immigration laws — we have country-by-country immigration quotas that favor certain coun¬
tries having certain racial and ethnic groups and discriminate against other countries — but
the Supreme Court hasn’t even entertained the thought of striking it down.
PROF. JACOBSON. That’s a different problem.

PROF. D’AMATO. No it isn’t. It’s a part of the same policy that you’re defending.
PROF. JACOBSON. No, it’s a separable problem. To say how should we treat citizens—
 Group Justice Versus Individual Justice: Equality Problems 211

PROF. D’AMATO. Oh?

PROF. JACOBSON, —and then to say, “Well, you can’t—”

PROF. D’AMATO. who’s making distinctions? W'ho’s dividing people into citizens
Now
and non-citizens? Why aren’t they all just “people” — like your men and women?
PROF. JACOBSON. No, fine, look. These are intellectually separable issues.

PROF D’AMATO. No they’re not. You’re making arbitrary divisions. “Citizen” is one of
the most arbitrary decisions you can make.

PROF. JACOBSON. Citizen is not arbitrary inasmuch as it defines who is and who is not
a member of the polity for the purposes of our laws.

PROF D’AMATO. Oh. Now I get it. Once you use the word “polity” the difference suddenly
becomes clear.

PROF. JACOBSON. Would you let anybody in the world vote in the United States?

PROF. D’AMATO. If they pay U.S. taxes, yes.

PROF. JACOBSON. Oh my God!

PROF. D’AMATO. I thought the Supreme Court was your highest authority.
PROF. JACOBSON. What a remarkable claim!

PROF. D’AMATO. Why not? If they’re contributing to the society, why shouldn’t they be
able to have a voice in it?

PROF. JACOBSON. So you’re eliminating the nation-state?

PROF. D’AMATO. Yes, it’s the worst governmentally imposed category of them all.
PROF. JACOBSON. Welcome to the Soviet Union!
(LAUGHTER)

The Empty Idea of Equality^^

Peter Westen

Relationships of equality (and inequality) are derivative, secondary relationships; they

are logically posterior, not anterior, to rights. To say that two persons are the same in a
certain respect is to presuppose a rule — a prescribed standard for treating them — that both
fully satisfy. Before such a rule is established, no standard of comparison exists. After such

a rule is established, equality between them is a “logical consequence” of the established

rule. They are then “equal” in respect of the rule because that is what equal means;
“Equally” means “‘according to one and the same rule.’” They are also then entitled to
equal treatment under the rule because that is what possessing a rule means: “To conform

33 95 Harv. L. Rev. 537, 548-50, 571-77 (1982).

212 JUSTICE AND THE LEGAL SYSTEM

to a rule is (tautologically) to apply it to the cases to which

it applies.” To say that two
people are “equal” and entitled to be treated “equally”
is to say that they both fully satisfy
the criteria of a governing rule of treatment. It says nothin
g at all about the content or
wisdom of the governing rule.
It might be thought that, while relationships of equality logical
ly follow substantive
definitions of right, equality may also precede definitions of right.
Thus, it might be thought
that a substantive right of persons to be treated with human respect
is itself a product of
an antecedent judgment that all persons are equal. That is not so.
To see why, consider
how one would go about deciding whether monstrously deformed
neonates or human
embryos or stroke victims in irreversible comas should be treated as “perso
ns” for purposes
of the right to respect. In trying to make the decision, one gets nowher
e by intoning that
all persons are equal, because the very question is whether the three candidates
are indeed
persons within the meaning of the rule. Nor does it do any good to say that
likes should
be treated alike, because the very question is whether the three candidates are indeed
alike
for purposes of human respect. Rather, one must first identify the trait that entitles anyone
to be treated with respect and then ascertain empirically whether the trait appear
s in one
or more of the three candidates. If the candidates possess the relevant trait, they
become
“persons” within the meaning of the rule and hence entitled to respect. If they
lack the
relevant trait, they are not “persons,” not equal to persons, and not to be treated like
persons for purposes of the rule.
[I]f the equal protection clause embodies the idea that likes should be treated alike and
if that idea truly entails a rebuttable presumption in favor of treating all persons alike, it
therefore follows that the equal protection clause contains a rebuttable presumption in favor
of treating people alike — a presumption rebuttable only by a showing of “rational” reasons
for treating people differently. In short, so the argument goes, any person who wishes to
challenge a state regulation that treats him differently from others may invoke the equal
protection clause and, by doing so, place the burden on the state to show rational grounds
for treating him differently.
The so-called “presumption” of equality raises two separate problems; (1) the rebuttable
presumption in favor of treating people alike is neither logically derivable from nor consistent
with the idea that “likes should be treated alike”; and (2) the presumption of equality is
essentially meaningless.
The first problem is that none of the plausible interpretations of the presumption of
equality can be derived logically from the idea of equality. If the proposition that “all
people are in some sense alike” means that all people are morally alike in all relevant
respects (and if that is a coherent thing to say), it does not follow that all people should
be treated alike until rational reasons are given for treating them differently. After all, if
persons who are alike should be treated alike and if all persons are morally alike, it follows
that all persons should always be treated alike; if all persons are truly alike in every moral
respect, there could never be any reason — much less any rational reason — for treating them
differently. The command to “treat likes alike” is absolute, while the presumption of equality
is a lesser prima facie command, a command rebuttable by a showing of “rational reasons”
for treating people differently. One cannot derive a prima facie command from an absolute
command. If, on the other hand, “all people are in some sense alike” means that all persons
 Group Justice Versus Individual Justice: Equality Problems 213

are empirically and morally alike in certain significant respects, it does not lollow that the
state has an obligation to treat them alike in all respects. On the contrary, if all people are
alike in some particular respect, the most that follows is that all people must be treated
alike in the particular respect — and in that respect alone — in which they are alike.
Of course, it could be that people are alike in only certain respects but that the
presumption functions as a procedural rule for reaching correct decisions in the face of
uncertainty about particular cases. A presumption of equality in that event would have to
be based on one of two assumptions. First, we might assume ignorance of whether the
respects in which people are morally alike are more numerous or more significant than the
respects in which they are unalike. Yet in that case, a presumption of equality would be
logically inconsistent with the idea that likes should be treated alike. The presumption
expresses a preference for treating people “alike” as opposed to “unalike.” The idea of
equality, in contrast, expresses no preference for “like” treatment as opposed to “unlike”
treatment. In requiring that likes be treated alike, it necessarily also requires that unlike be
treated unalike. This is so because to say that two people are “alike” for purposes of
claiming certain treatment means that they both possess whatever quality or qualities are
prescribed for that treatment by existing rules, and thus are both entitled to the treatment;
and to say that two people are “unalike” means that one of them lacks a quality prescribed
by rules for that treatment, and thus is not entitled to the treatment. The very rules of
treatment that render some people “alike” (and thus require they be treated alike) logically
render other people “unalike” (and require they be treated unalike). As far as equality is
concerned, therefore, when one is ignorant as to whether people are likely to be alike in
morally significant respects, a presumption in favor of treating people alike is as unjustified
as a presumption in favor of treating them wwalike; each presumption creates an unjustified
risk that it will deny people the treatment to which they are actually entitled.
The same procedural rule, however, could be based on a second assumption. The
presumption of equality could express a judgment that people are alike in more morally
significant respects than they are unalike. Put another way, the presumption could be that,
in instances of uncertainty, there is greater moral danger in treating persons unalike than
in treating them alike. Such a presumption, however, cannot be derived from the general
proposition that likes should be treated alike. Instead, it would have to derive from particular
experience that distinctions between persons are either usually unjustified or sufficiently
grave to outweigh the harm of usually doing the opposite. Because the principle that “likes
should be treated alike” does not itself entail the idea that people are alike in more morally
significant respects than they are unalike, any presumption of the latter kind must derive
its substance from outside the idea of equality.
The second, and more serious, problem with the presumption of equality is that it is
totally indeterminate. For one thing, just as the presumption of equality itself contains no
standards for distinguishing “like” from “unlike” objects, neither can it distinguish “like”
from “unlike” treatments. Furthermore, because every rule treats people alike in some
respects and unalike in others, the presumption cannot fill its “core function” of distin¬
guishing rules that require justification from those that do not. Finally, even if the pre¬
sumption could definitely identify rules requiring justification, the presumption itself
contains no standards for distinguishing “good” from “bad” reasons for treating people
214 JUSTICE AND THE LEGAL SYSTEM

unalike, and so it cannot tell an actor when the presumption

is rebutted. For all three
reasons, the presumption remains meaningless as a moral norm.
What does all this mean for rationality review under the equal
protection clause? It
means that rationality review cannot be justified or defended as a distinct
ive attribute of
equality. That is not to say that the state may enact regulatory classif
ications that are
rationally unrelated to legitimate state interest[s].” The pros and cons
of rationality
review are matters of substantive constitutional value that must be decided
on their own
merits. The point is that, if rationality review has merit, it is not because
the state is
constitutionally obliged to have rational reasons for treating people “unalike”
(as opposed
to alike ) but because the state is obliged to have rational and legitimate reason for
every
way in which it treats people. Whatever merit rationality review has must ultimately derive
not from notions of equality but from notions of substantive due process.

Is Equality a Totally Empty Idea?®*

Anthony D’Amato

Let us suppose that a state legislature decides to restrict motorists’ use of gasoline by
enacting a statute allowing drivers to purchase gasoline only on weekdays if their license
plate is odd-numbered and only on weekends if their license plate is even-numbered. The
even-numbered drivers, constituting about half the motorists in the state, will thus effectively
be restricted to purchasing gasoline on Saturdays, or in other words will have one fifth the
opportunity to purchase of the drivers who have odd-numbered plates. We can assume that
this statute is not an attempt to reduce lines at service stations (actual statutes have done
this by, for example, allowing odd-numbered plates to purchase gasoline on odd-numbered
days), but rather to cut down on total gasoline consumption. We can further assume that
the legislature calculated that the great difficulty of purchase now imposed upon even-
numbered drivers will reduce total gasoline consumption by the desired amount in that state.
Suppose now that the even-numbered drivers bring a class-action suit to declare the
statute unconstitutional. Have they been denied substantive due process? No, because the
means selected by the legislature to reduce gasoline consumption is rationally related to its
goal. In fact, it is probably cheaper than the alternative of issuing ration points to all
drivers. Moreover, since the legislature could have stopped the sale of gasoline in the state
entirely, cutting back on sales by the means chosen was well within the legislature’s power.
Instead, the only real complaint that the even-numbered drivers have is that they have
not been treated equally with the odd-numbered drivers. Here one can imagine Professor
Westen saying, “But they are not equal — they are different in precisely the difference
articulated by the legislature, namely, that they possess license plates that are divisible by
2 whereas the other drivers do not possess such plates.” To be sure, this is, logically speaking,
a difference. But the fact is that the “difference” selected by the legislature was a random

34 81 Mich. L. Rev. 600 (1983).

 Group Justice Versus Individual Justice: Equality Problems 215

one; it was arbitrary. If people are subject to arbitrary classifications, they are not being
treated equally. Only if the classifications are nonarbitrary can we agree with Professor
Westen that the “equality” rhetoric falls out, because then the classification defines the
relevant difference such that the two groups should now be treated “unalike.”
Professor Westen has responded to my hypothetical case by formulating a prescriptive
standard that he believes is logically anterior to any concept of equality:

The state shall not pursue its ends by imposing a great burden on one class of persons
where it could fully achieve its ends by imposing a considerably lesser burden on that or
another class of persons.”

However, his standard is not, and cannot be, a logical presupposition of the idea of equality.
To simplify the analysis, let us assign a burden of 5 to my class of drivers with even-
numbered license plates, representing the five days of the week that they cannot purchase
gasoline, and a burden of 1 to the odd-numbered class. Professor Westen’s standard would
require a reduction on the burden of the even class by, for example, lowering it from 5 to
2. But then, in order to fully achieve the state’s ends of a reduction in the availability of
gasoline, there must be an increase on the odd class from 1 to 4. Thus:
Original hypothetical:
5 (even class) + 1 (odd class) = 6
Westen's standard, first application:
2 (even class) + 4 (odd class) = 6

However, it is now apparent upon inspection that the new arrangement continues to
violate the Westen standard, although from the opposite direction. We must apply the
standard again, this time reducing the burden on the odd class and increasing it on the
even class. If we had no idea of the concept of equality, we would be required to continue
applying the standard indefinitely, until at some point we would hit upon an equilibrium
position where there can be no further violation of the statutory standard:
Westen standard, final application:
3 (even class) -I- 3 (odd class) = 6

In brief, the concept of equality is inherent in Westen’s standard. The standard is simply
a cumbersome way of saying that the two classes of persons must receive equal protection
under the law.
Yet one might object that the procedure of successive applications of the standard until
equality is reached shows that the standard is anterior to the concept of equality. This
objection cannot be maintained, however, due to a hidden assumption in the very procedure
I described of successive applications of the standard. For the only way we know what
direction to move in making reductions and increases in burdens is to have a concept of

equality in mind. The only way we can know that one burden is “great” and another burden
is “considerably lesser,” to use the words in Professor Westen’s standard, is to compare the

35 Westen, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, 81 Mich. L. Rev. 604
(1983).
216 JUSTICE AND THE LEGAL SYSTEM

burdens. But comparison presupposes a measure of equality, for we cannot know that one
burden is greater than another unless we first have a concept of when the two burdens are
equal.
Professor Westen s standard, therefore, is logically posterior to the concept
of equality.
If we start with the Equal Protection Clause, then a standard such as Profess
or Westen’s,
which he attempts to ground in substantive due process, can be given operati
ve content.

5.3 The claim to be treated as a group

The cases we have considered so far in this chapter concern claims by individuals whom
society treats as a group. In Bakke the claim was that the legal system as well ought to
treat disadvantaged minorities as a group for remedial purposes. In Manhart the claim was
that the legal system ought to prohibit the group treatment. Now we turn to individuals
whom society does not treat as a group over relevant purposes, and who claim that the
legal system ought to treat them as a group for those purposes. We present two representative
samples. The first — the handicapped — are individuals who wish to be treated as a group
for preferential treatment in public facilities, such as education and public accommodations.
The second are two sets of individuals society has historically treated as a group for some
purposes, but who wish the legal system to accord them recognition as a group for other
purposes. As you read this section consider whether each group is asking for “extra” justice.

The Foundations of Justice: Why the Retarded and the Rest of Us

Have Claims to Equality®*
Robert M. Veatch

Eddie Conrad is a ten-year-old boy born with multiple deformities; his mental retar¬
dation is considered to have preceded birth. He has a hearing impairment probably related
to chronic ear infection in early childhood, visual impairment possibly resulting from too
high a concentration of oxygen administered at birth, and a speech impairment apparently
inexplicable either in terms of his hearing or palate difficulties.
The immediate problem for his parents is that Eddie is to be transferred from a private
to a public school and will be placed in a classroom for multi-handicapped children. In the
private school, he had been receiving twenty minutes of speech therapy three times a week
from the speech therapist and twice a week from a graduate intern. The therapist recommends
that an intensive program be continued, and independent evaluations by the public school
therapist indicate that such a rate of intensive therapy would be of benefit to the child —
although both evaluators concede in the opinion that Eddie’s speech will never be normal.
The benefit to the child will be to improve articulation, which is not sufficiently clear that
others can, with some effort, understand him. No one believes that the therapy will eradicate
the problems, however.

36 Pp. 3-4 (1986).

 Group Justice Versus Individual Justice: Equality Problems 217

The public school system in the county where Eddie lives provides one speech therapist
whose decision as to which children she will see is based on (a) need and (b) the possibility
of benefit from the service. The therapist has selected this child as one she will see, but
she can schedule him for only one twenty-minute session per week.
The parents have obtained from the division of special education the following facts:
there is only one speech therapist for the school system; there are no funds for hiring
another; P.L. 94-142 assures that “all handicapped children have available to them ... a
free appropriate public education that emphasizes special education and related services
designed to meet their unique needs. The term ‘special education’ includes corrective and
other supportive services including speech pathology and audiology, psychological services,
physical and occupation therapy, recreation, and medical and counseling services (for diag¬
nostic and evaluation purposes).’’ U.S. Stat., v. 89, 94th Cong., 1st Sess. 773-96 (1975).
Legal counsel has advised the family that grounds exist for filing suit against the school
system.
The parents have also learned that because of funding difficulties the county school
board has cut both art and music from the elementary school curriculum. If these cuts do
not resolve the budget difficulties, the school board’s next step will be to eliminate physical
education in the elementary schools followed by elimination of art, music, and — as a last
resort — physical education from the high school curriculum. The parents believe that they
would win a case on behalf of their handicapped child. They also realize that winning the
suit would result in the hiring of a second speech therapist, but would also entail the sacrifice
of the physical education teacher for the elementary schools. Eddie’s parents believe their
primary obligation is to their child, yet they also feel they have an obligation to support
art, music, and physical education in the elementary school curriculum.”

The Republic”
Plato

[Plato’s Republic, as we saw in Chapter 1, is the classic statement of the ideal or just
state. There is a strict allocation of functions according to talent and ability. Those good
at making shoes will become shoemakers; those who excel at physical sports will become
soldiers; those who are the most intelligent will be the rulers of the state. All healthy and
strong babies are to be well cared for and nurtured so as to ensure the flourishing of the
state. What about children who are born inferior or defective?]

SOCRATES. And as the offspring are born, won’t they be taken over by the officers
established for this purpose — men or women, or both, for presumably the offices are common
to women and men — and . . .

Although the author does not indicate whether this is a real case or one that is made up from composite
examples, it is clear that such a case could very well arise. [Eds.]
38 The Republic of Plato 460b (Allan Bloom trans. 1968).
218 JUSTICE AND THE LEGAL SYSTEM

GLAUCON. Yes.

SOCRATES. So, 1 think, they will take the offspring of the good
and bring them into the
pen to certain nurses who live apart in a certain section of the
city. And those of the
worse, and any of the others born deformed, they will hide away in
an unspeakable and
unseen place, as is seemly.

GLAUCON. If the guardians’ species is going to remain pure.

Note

G.M.A. Grube has noted that “[t]here can be no doubt that Plato is here recommending
infanticide by exposure for these babies, a practice which was quite common even in classical
times. Presumably the point of exposure rather than direct infanticide was that the respon¬
sibility was felt to be thrown upon the gods, for the child might be saved, as Oedipus

was.”^°

Equal Treatment and Compensatory Discrimination'*’

Thomas Nagel

The greatest injustice in this society, I believe, is neither racial nor sexual but intellectual.
I do not mean that it is unjust that some people are more intelligent than others. Nor do
I mean that society rewards people differentially simply on the basis of their intelligence;
usually it does not. Nevertheless, it provides on the average much larger rewards for tasks
that require superior intelligence than for those that do not. This is simply the way things
work out in a technologically advanced society with a market economy. It does not reflect
a social judgment that smart people deserve the opportunity to make more money than
dumb people. They may deserve richer educational opportunity, but they do not therefore
deserve the material wealth that goes with it. Similar things would be said about society’s
differential reward of achievements facilitated by other talents or gifts, like beauty, athletic-
ability, musicality, etc. But intelligence and its development by education provide a partic¬
ularly significant and pervasive example.

3’ A place where lambs, kids, and calves were raised. This whole passage compares the mating and procreation
of men to those of animals. The sacred marriages apparently take their standard, not from the gods, but from
the beasts.

^0 Plato, Republic 122, n. 6 (G.M.A. Grube trans. 1974).

2 Philosophy and Public Affairs 357 (1973).
 219
Group Justice Versus Individual Justice: Equality Problems

Questions

1. If Eddie Conrad’s parents sued the county school board for failing to comply with
result
P.L. 94-142, and the school board defended on the ground that compliance would
the case?
in cutting physical education from the curriculum, how should the judge decide
Should the judge “weigh” the detriment to many students in not having physical education
children
training against the benefit to a small minority of handicapped or mentally retarded
of
in getting special services? Should the judge ask for expert evidence? If so, evidence
to
what? Should evidence be introduced as to the qualitative impact upon Eddie Conrad
have speech therapy compared with a possibly lesser impact spread quantitatively across
if,
more students of getting training in physical education? Would your answer be different
in
instead of physical education, the proposed cuts would be in music and art education
high schools?

2. If the judge is a utilitarian, is it not arguable that the total good is maximized by
rather than
providing art, music, and physical education instruction to all normal students
words,
helping a single disadvantaged boy? But doesn’t Eddie Conrad have, in Veatch s
“an unusual need to make him more like the other children”?^^ If all normal students are
deprived of art, music, and physical education, and Eddie receives speech therapy, would
the result be that he is better off than any of the normal students? Could you argue to the
with
judge that, even with speech therapy, no normal student would want to trade places
Eddie? Would you then be open to the counter-argument that your argument is unfair
because it is not the normal students’ fault that Eddie is the way he is? Would it be open
to you to distinguish between unfairness and injustice? Could you argue that injustice to
Eddie is more important than unfairness in making comparisons?
3. Could an argument be made to the judge that invokes the Aristotelian ideal of
justice— that equals should be treated equally and unequals unequally? Should Eddie Conrad
be argued to deserve equal treatment? If so, would that not deprive him of any claim to
“special services”? What if you argue that Eddie is an “unequal”? If he is an unequal,
in what manner should he be treated unequally? Is it clear that if he receives less than his
fellow students, he will be treated unequally? Is it also clear that if he receives more than
his fellow students he will be treated unequally? Then what should it be — less or more?
What could Aristotle have had in mind? Does Aristotle’s position help or hurt your
argument?
4. Plato’s vision of unequal treatment for Eddie Conrad is extreme. Eddie would receive
infinitely less than anyone else; indeed, he is to be destroyed in infancy by being put away
in an “unseen place.” As Veatch points out,
there is evidence to indicate that in Rome [at the time of the Roman Empire], the Tiber

River was the ‘mysterious place’ which served as repository for defective infants. Such
attitudes are not surprising when viewed within the context of a culture in which even the

The Foundations of Justice: Why the Retarded and the Rest of Us Have Claims to
R. Veatch,
Equality 100 (1986).
220 JUSTICE AND THE LEGAL SYSTEM

infanticide of mentally healthy infants was condoned

as an acceptable means of population
control. ^

Even if “not surprising,” are such “attitudes” just?

5. Is the liberal principle of “equality of opportunit
y” open to all persons just when
applied to Eddie’s situation? Is it not a mockery of
justice to say that Eddie has the same
opportunity as anyone else to compete for admission to
college or for a job? Can the
principle of equality of opportunity” be saved if we amend
it by saying that all handicapped
persons must be given a “handicap” (as poor golfer
s are given extra swings) so that
competition among persons for scarce resources such as colleg
influenced by biological factors? e education or jobs are not

6. Consider the following case reported by Veatch:

Jamie Fisk, an eleven-month-old child suffering from biliary atresia

and in need of a liver
transplant, received a cadaver organ after her father, an articulate medical
administrator,
appealed to his Senators, Congressmen, the White House, the American Medical
Associ¬
ation, and the American Academy of Pediatrics, all of whom then helped
publicize his
daughter s need for a liver donation for transplant. No one can question
the integrity and
dedication of a father who would go to such efforts for his daughter. [But]
the father’s
unique social position and skill in reaching the media gave his daughter an unequal
oppor¬
tunity for access to a life-saving liver transplant in comparison with other similarl
y situated
infants whose parents were not in a position to generate this publicity.^'*

Was it unfair for the media to publicize Jamie’s case? Could a less articulate father who
also has a child in Jamie’s condition sue the hospital that intends to make the liver transplan
for Jamie on the ground that a scarce resource should not be allocated because of the t

extraneous factor of a father’s skill in public relations? Should a court hear that case?
7. The title of Veatch’s book suggests his major argumentative position. What do you
think of his argument, which he spells out as follows?

The natural lottery distributes mental and physical assets in what appears to be a random
way with people receiving all manner of assets. Each of us is deficient to some extent in
all natural abilities. No one is perfectly intelligent, perfectly strong, perfectly beautiful, or
perfectly dispositioned. We are all handicapped. An egalitarian system of justice would
provide compensation — medical or educational services — necessary to give us a chance at
equality, and it would provide them with priority going to those with the greatest deficits. . . .
The Eddie Conrads of the world will get more specialized educational intervention
than others, but some of the rest of us will benefit (or have our loved ones benefit) in other
ways and at times we cannot imagine. More critically, the way we view the world changes
if one opts for the egalitarian assumptions - The we/they dichotomy collapses. Since we
are all handicapped, we are all beneficiaries.'*’

-•3 Ibid., at 22.

«« Ibid., at 125.
Ibid., at 167.
 Group Justice Versus Individual Justice: Equality Problems 221

Law, Legislation, and Liberty**

Friedrich A, Hayek

The transition from the negative conception of justice as defined by rules of individual
conduct to a ‘positive’ conception which makes it a duty of ‘society’ to see that individuals
have particular things, is often effected by stressing the rights of the individual. It seems
that among the younger generation the welfare institutions into which they have been born
have engendered a feeling that they have a claim in justice on ‘society’ for the provision
of particular things which it is the duty of that society to provide. However strong this
feeling may be, its existence does not prove that the claim has anything to do with justice,
or that such claims can be satisfied in a free society.

There is a sense of the noun ‘right’ in which every rule of just individual conduct
creates a corresponding right of individuals. So far as rules of conduct delimit individual
domains, the individual will have a right to his domain, and in the defence of it will have
the sympathy and the support of his fellows. And where men have formed organizations
such as government for enforcing rules of conduct, the individual will have a claim in justice
on government that his right be protected and infringements made good.
Such claims, however, can be claims in justice, or rights, only in so far as they are
directed towards a person or organization (such as government) which can act, and which
is bound in its actions by rules of just conduct. They will include claims on people who
have voluntarily incurred obligations, or between people who are connected by special
circumstances (such as the relations between parents and children). In such circumstances
the rules of just conduct will confer on some persons rights and on others corresponding
obligations. But rules as such, without the presence of the particular circumstances to which
they refer, cannot confer on anyone a right to a particular sort of thing. A child has a
right to be fed, clad, and housed because a corresponding duty is placed on the parents or
guardians, or perhaps a particular authority. But there can be no such right in the abstract
determined by a rule of just conduct without the particular circumstances being stated which
determine on whom the corresponding obligation rests. Nobody has a right to a particular
state of affairs unless it is the duty of someone to secure it. We have no right that our
houses do not burn down, nor a right that our products or services find a buyer, nor that
any particular goods or services be provided for us. Justice does not impose on our fellows
a general duty to provide for us; and a claim to such a provision can exist only to the
extent that we are maintaining an organization for that purpose. It is equally meaningless
to speak of right in the sense of a claim on a spontaneous order, such as society, unless
this is meant to imply that somebody has the duty of transforming that cosmos into an
organization and thereby to assume the power of controlling its results.
Since we are all made to support the organization of government, we have by the
principles determining that organization certain rights which are commonly called political

rights. The existence of the compulsory organization of government and its rules of organ-

Vol. 2, The Mirage of Social Justice 101-103 (1976).

222 JUSTICE AND THE LEGAL SYSTEM

ization does create a claim in justice to shares in the

services of government, and may even
justify a claim for an equal share in determining what
government shall do. But it does
not provide a basis for a claim on what government
does not, and perhaps could not,
provide for all. We are not, in this sense, members of an organi
zation called society, because
the society which produces the means for the satisfaction of
most of our needs is not an
organization directed by a conscious will, and could not produ
ce what it does if it were.
The time-honoured political and civil rights which have been
embodied in formal Bills
of Right constitute essentially a demand that so far as the power
of government extends it
ought to be used justly. As we shall see, they all amount to particu
lar applications of, and
might be effectively replaced by, the more comprehensive formula
that no coercion must
be used except in the enforcement of a generic rule applicable to
an unknown number of
future instances. It may well be desirable that these rights should
become truly universal
as a result of all governments submitting to them. But so long as the
powers of the several
governments are at all limited, these rights cannot produce a duty of
the governments to
bring about a particular state of affairs. What we can require is that so far as
government
acts it ought to act justly; but we cannot derive from them any positive powers
government
ought to have. They leave wholly open the question whether the organization for coercio
n
which we call government can and ought in justice be used to determine the particu
lar
material position of the several individuals or groups.

Questions
1. Would Hayek require the abolition of public education? If not, does his argument
suggest any solutions to the problem of the handicapped?
2. Does the case for affirmative action necessarily depend on the positive conception
of justice that Hayek condemns?

The New Indian Claims and Original Rights to Land^^

David Lyons

Early in its constitutional career, in 1790, Congress passed the Indian Nonintercourse
Act, which requires that all transfers of lands from Indians to others be approved by the
federal government. The Act was modified from time to time over the next forty-odd years,
but it was not changed in any relevant respect, and it remains in effect today. Its purpose
is clear. It was meant to guarantee security to Native Americans against fraudulent acqui-

4 Social Theory & Practice 249, 249-51, 262, 266-71 (1977)

'»« 25 U.S.C.A § 177.
 Group Justice Versus Individual Justice: Equality Problems 223

sition by others of the Indians’ allotments of land. Such guarantees were plainly needed.
By 1790, expropriation had been practiced by Europeans for nearly two centuries. Fraudulent
land acquisitions by colonists had been a source of friction between them and the British
government, which occasionally leaned towards protecting Native Americans. Security for
Indian land was an important bargaining point during the Revolutionary War, when Indian
support or at least neutrality was desperately needed by the rebellious colonists. The Non-
intercourse Act of 1790 pledged federal security for Indian land holdings. Under it, the
federal government is bound to act as guardian or trustee, overseeing all transfers ot Indian
lands, including those to states and other branches of government as well as to private
parties.
Several suits that have recently been initiated by American Indian tribes for recovery
of lands held by them when the Nonintercourse Act took effect in 1790 invoke this law. It
is alleged that certain transactions by which lands were subsequently lost to them are invalid
because federal approval was neither sought nor obtained in those cases. Those historical
facts have not been contested.
It does not follow — either legally or morally — that all of the land in question must be
returned to the Indians. But an observer might well suppose that some, at least, of the
lands should be restored to them. I wish to examine that idea, not only to help us in
determining what justice requires, but also to evaluate some lines of reasoning in support
of and in opposition to it. For the most natural arguments that might initially be advanced
on both sides of the issue — arguments that appear to be implicit in the rhetoric already

surrounding these cases — center on what we, following Robert Nozick,^’ might call “his¬
torical” considerations affecting social justice.
I wish to suggest that property rights may be even more unstable than has so far been
argued. Let us expand on an example that Nozick uses. Suppose that we are occupants of
an isolated island. We have arranged to use the land and all its other resources among
ourselves, and we live comfortably, with some less perishable goods set aside for rainless
seasons. One day, a party of castaways from a shipwreck are washed up on our shore.
They are uninvited but also involuntary guests. There is no prospect for their safe removal,
and they have no resources beyond their capacity to work. But they are also unaggressive.
What are we to do? Nozick would agree that we may not drive them back into the sea just
because they come with no rights to anything on our island. Nor may we merely allow
them to stay without sharing our resources with them. It is incumbent on us to share with
them — whether we like the idea or not — even if that means that we enjoy a lowered standard
of living as a consequence.
Let us now consider a variant of our example. Suppose that the castaways who arrive
upon our shore are not friendly and cooperative but aggressive and domineering. We try
to be hospitable but they do not reciprocate. They cheat us, kill many of us, and force the
survivors to reside in a small area of the island, away from our homes, while they appropriate
a disproportionately large part, including the most desirable sectors, for themselves.
What does justice call for in such a case? It cannot require less for us than it would

^9 See Robert Nozick, Anarchy, State, and Utopia 149-231 (1974).

224 JUSTICE AND THE LEGAL SYSTEM

have done in our original example, when it required that we share with the newcome
rs. We
too have a right to a fair share of the island’s resources. If justice requires more,
then it
may well include compensation from the piratical invaders for the wrongs we have suffered
at their hands. We may be too weak to secure our rights; but that does not invalidate our
claims.
Suppose that we are too weak and that we pass from the scene without justice being
done. Once we are dead, it is impossible to compensate us for the wrongs we have suffered.
Likewise, once the invaders die away, the wrongdoers cannot contribute to any rectification
that justice may require.
Consider now the claims of our descendants, and for this purpose imagine two alter¬
native (or possibly successive) historical developments. In the first continuation of our
island s story we imagine that our descendants continue to be subjugated, cheated, and
denied a fair share of the island’s resources, and continue to reside in that portion of the
island that was earlier assigned to us, their departed ancestors. They too have valid claims,
analogous to those we had that were never respected. For justice requires that they receive
not only a fair share of the island’s resources but also, we may assume, compensation for
the wrongs they themselves have suffered in being deprived during their lifetime of that fair
share.

In the second continuation of our island’s history, we imagine that enlightenment finally
spreads across the island. The descendants of the piratical invaders come to live in harmony
with our own descendants, so that no one is deprived of a fair share of the island’s resources.
Can we assume that any of our descendants, in this happy sequel to our unhappy history,
have additional claims against the others on the island, the descendants of the piratical
invaders? I do not see how we can. If the generation in question has been deprived of no
part of its own fair share of the island’s resources, if they suffer no continuing disadvantage
owing to the legacy of the former system on the island, what relevant matter might have
been overlooked? The wrong that was done to us, the wrong that was never rectified, cannot
now be corrected. That part of history is irrelevant to their current claims.
It is important to see now that similar considerations apply to the former case, the
first and less happy continuation of our current example. Our subjugated descendants have
claims to a fair share of the island’s resources and to compensation for wrongs done them
by a system on the island that deprives them of that fair share. That system and thus their
deprivation and their claims are rooted, causally and historically, in the wrongs that we,
their ancestors, suffered at the hands of the invaders. But this is not to say that their claims
are normatively derived from ours, that they inherited our original rights, or that their
claims for compensation are claims for correction of wrongs that were done to us, as distinct
from wrongs that have been done to them.
My metaphor and its moral may by now be obvious. Let the island be America and
the original islanders Native Americans, to whom all the land may be said initially to belong.
If those who had landed on these shores had been impoverished outcasts from Europe,
unaggressive and cooperative, with no resources save their labor power and no place else
to go, it would have been incumbent on their hosts not only to share their resources with
them but also to reshape their social arrangements to accommodate the new members of
their universe. For the purpose of this general point, it makes no difference how the original
 Group Justice Versus Individual Justice: Equality Problems 225

occupants of the land had used it, how they had divided it up, how they conceived of
property rights, whether they held it individually or collectively, and so on.
That is not, of course, the way things happened, and so history developed much more
like the unhappy history in the example. Native Americans by and large tried to be hospitable
to their uninvited and unexpected guests, but the guests did not generally reciprocate. To
be sure, some of the guests were impoverished, some were outcasts, some were unable to
leave once they had arrived, and some, perhaps, would have been prepared to form an
integrated society or to settle contentedly on limited tracts set aside for them by their hosts.
But too many acted rather as invaders, slavers, and conquerors, who proceeded by force
and by fraud to appropriate the land and to eliminate or drive out the people living here.
I do not wish to deny any of this or to minimize the wrongs that were done. 1 most
especially do not mean to deny or to minimize the valid claims of Native Americans living

today. My point is that their claims are unlikely to derive normatively from their ancestors’
original rights. The original rights of Native Americans were no more sacrosanct than

anyone else’s. From the fact that they had morally defensible claims two hundred or four
hundred years ago it cannot be inferred that those claims persist. But the initial argument
assumes just that; it assumes that circumstances had no effect on those rights.
Native Americans have systematically been discriminated against in our society. They
have a valid claim to a fair share of its resources as well as to social and economic
opportunities. They also have a valid claim to compensation for unjust deprivation that
the current generation has suffered from past injustices. But it is highly doubtful that they
have any special claims based upon their distant ancestors’ original occupation of the land.
For circumstances have significantly changed. After the European dispossession of the
Indians, waves of impoverished immigrants arrived on these shores in little better shape
than castaways from a shipwreck. Most of the occupants of America today have had little,
if anything, to do with dispossession of Native Americans. This does not mean that they
have no complicity in a pattern of unjust deprivation of current Native Americans, for
which compensation is required. But that is another matter entirely, and a much more
complex matter too.
I suggest, therefore, that the current Indian land claims be viewed, not as invoking an
original right to the land, a right that has been passed down to current Native Americans
and that now needs to be enforced, but rather as an occasion for rectifying current inequities
(some of which, of course, may trace back causally to the dispossession of Native Americans
and the aftermath).
Now that I have made my major points, I must try to note some complications.
One set of complications turns upon the fact that the current Indian claims are being
made on behalf of tribes rather than private persons. Tribes originally held the land, and
a tribe, like a nation, can hold a right over generations. This has some bearing on the
current claims. It does not affect my main point, which was not just that inheritance is
suspect but more generally that moral rights to land are inherently unstable or variable
with circumstances. We cannot assume that rights held generations ago, even if they were
held by tribes, have persisted to this day. But this aspect of the cases is relevant to claims
invoking the notion of compensation for wrongs done. Some past wrongs can no longer
be corrected, but some can. It may be impossible to compensate the ancestors of current
JUSTICE AND THE LEGAL SYSTEM

Native Americans for wrongs that they suffered long ago, but it may be possible to com¬
pensate tribes for past wrongs done them. If the tribes were wronged, those wrongs may
well have involved violations of original rights, even if those rights did not survive the
changing circumstances and did not persist into the current generation. If tribes can indeed
be wronged, and such wrongs are subject to compensation, then the current claims can be
supported by related considerations: this sort of argument transcends the valid claims of
current Native Americans for compensation in view of wrongs done to them as individual
human beings. I do not wish to deny such possibilities here. They require careful and
systematic examination.
The tribal character of the current claims is relevant in other respects too, which raise
complex and difficult issues. I have noted, for example, that one aim of the current suits
appears to be not mere ownership of the land but control over its development. There is
the prospect of conflict between the interests of Native Americans in preserving undeveloped
land and the others who wish to develop it, build on it, live and work on it. This is not
like the conflict between conservationists and developers. For the Native Americans involved
are seeking to rebuild a way of life that turns upon certain ways of dealing with the land,
and an issue here is the right to inhibit development (which may involve sorely needed jobs,
and not just profits) based on the right to secure a culture.
That brings us to a central argument favoring the current claims. And it is important
to support the current claims, since radical steps have been threatened to undermine them,
including retrospective legislation.
One thing that makes the claims under the Nonintercourse Act so important is that
they appear to be legally well-founded. Unlike past calls for reparations for black Americans,
in view of the legacy of slavery and discrimination, the current claims under the Nonin¬
tercourse Act turn upon existing law. Radical new legislation or executive action is not
needed to sustain them.
But it may reasonably be urged that these cases test the sincerity of our historical
commitments. The federal government long ago assumed “fiduciary” responsibility for
securing Indian lands and protecting Native American interests. It has however adhered to
the law chiefly when that worked to the Indians’ disadvantage. Now, when at last Native
Americans have marshalled the legal resources to secure some lost benefits, the threat is
that the law will not be followed. Evenhanded fairness would seem to require that the federal
government live up to its past commitments and not retroactively change the rules just when
it would undermine Indian interests to do so.
Beyond this, it may dutifully be observed that justice would not be done simply returning
all the lands in question to the tribes now claiming them. This would impose enormous
burdens on small home owners and small businesses without sufficient reason. It seems, in
any case, that undeveloped land is the primary target of the tribes, the other land being
unavoidably blanketed in under the legal claims. The federal government should work to
negotiate a satisfactory settlement. This is what the tribes have been seeking for some
time. . . .
Claims under the Indian Nonintercourse Act are different from some other claims that
Native Americans may make for recovery of land, since the former turn upon plainly illegal
transactions while the latter may involve marginally legal but unjustifiable acts by the federal
 Group Justice Versus Individual Justice: Equality Problems 227

government. The rhetoric that 1 have anatomized in this paper does not distinguish between
the cases. I do not mean to suggest that the claims are insupportable because the rhetoric
is unilluminating. The point is rather that the claims are stronger then the rhetoric may
suggest. My purpose here has been to challenge certain ways of thinking about moral rights
to property — ways that are typically invoked to secure unjust holdings. Property rights are
not sacrosanct. They must bend to the needs and interests of human beings.

Question
In his classic article, Original Indian Title, Felix Cohen argues that for the most part
European settlers in the United States paid something like fair market value to Indian tribes
for their land.®’ For example, he notes that after paying Napoleon 15 million dollars for
the cession of political authority over the Louisiana Territory, the United States government
paid
the Indian tribes of the ceded territory more than twenty times this sum for such lands in
their possession as they were willing to sell. And while Napoleon, when he took his 15
million dollars, was thoroughly and completely relieved of all connections with the territory,
the Indian tribes were wise enough to reserve from their cessions sufficient land to bring
them a current income that exceeds each year the amount of our payment to Napoleon.®’
Cohen suggests that this recognition of Indian property rights by the federal government
was of utmost importance in the development of the purchased land, since the government
had to develop the land in order to get a return on its investment. He contrasts the situation
in the United States with that in South America, Canada, and Australia, where the land
was stolen, and remained substantially undeveloped during the same era. Cohen questions,
also, how much $24 worth of goods in 1626 (the purchase price of Manhattan island) was
actually worth then. How much was the cost of delivery of the goods in human life and
labor? How much would that $24 be worth today, if invested at prevailing rates of compound
interest?®® How does Cohen’s account affect your thinking about Lyons’ argument?

The Case for Black Reparations®'’

Boris I. Bittker

Is the case for compensation weakened by the fact that segregation was sanctioned by
the “separate but equal’’ doctrine from 1896, when it was enunciated by Plessy v. Ferguson,

50 32 Minn. L. Rev. 28 (1947).

51 At the time he wrote the article, Cohen was, it must be said. Associate Solicitor and Chairman, Board of
Appeals, U.S. Department of the Interior, and was responsible for Indian affairs in the Department.
52 Ibid., at 35-36.
53 At 7% interest annually it would be worth $1.35 trillion.

54 Pp. 3-4, 12-15, 22-24, 26-29 (1973).

228 JUSTICE AND THE LEGAL SYSTEM

until 1954, when Plessy was overruled by Brown v. Board of

Education! I think not. We
need not employ the fiction that this doctrine was itself unconstituti
onal during its hegemony
in order to free ourselves of its influence. “Wisdom too often
never comes, and so one
ought not to reject it merely because it comes late.”” If, even
though only by hindsight,
conduct is seen to be both unconstitutional and abhorrent, the
fact that it was thought
permissible, neutral, or benign when committed may be a mitigating
element in assessing
blame or guilt, but it is surely not a reason to refrain from making amends
. When Congress
acted in 1946 to redress some of the wrongs committed while Americ
a was pursuing her
manifest destiny by pushing back the Indians, it created an Indian Claims Commis
sion to
adjudicate a wide range of claims by Indian tribes. These included not merely
claims under
treaties that had been violated by the United States but also “claims which would
result if
the treaties, contracts, and agreements between the [Indian tribal] claimant and the
United
States were revised on the ground of fraud, duress, unconscionable consideratio
n, mutual
or unilateral mistake, whether of law or fact, or any other ground cognizable by
a court
of equity and claims based upon fair and honorable dealings” is a more amorphous
standard than courts are ordinarily handed by Congress and they have only just begun
to
give it tangible form.” But as abstractions go, it would be a suitable one for congress to
keep in mind in passing on the reasonableness of the demand for black reparations.
Black reparations, then, would serve to redress injuries suffered under a legal system
that was held by Brown v. Board of Education to violate the Constitution. Moreover, even
before the Brown case was decided, segregation as actually practiced consistently and delib¬
erately violated the “separate but equal” doctrine of Plessy v. Eerguson. Closely related to
the pervasive inferiority of segregated facilities for blacks, but geographically more wide¬
spread, was the unequal enforcement of the law. Inequalities in the administration of such
public functions and services as police protection, government employment, and voter reg¬
istration were nakedly improper and could not be cloaked by the “separate but equal”
doctrine. There are many shortcomings in our treatment of the losers in our society, but
none matches this record of institutionalized deprivation of a group’s constitutional rights.
In this respect, the case for black reparations is even stronger than the case for compensating
the victims of poverty or miscarriages of criminal justice.
The case for black reparations, of course, cannot be judged in isolation; though vast,
our nation’s resources are not unlimited, and there are other meritorious claims. A prominent
black opponent of reparations, Bayard Rustin, argues that “as a purely racial demand, its
effect must be to isolate blacks from the white poor with whom they have common economic
interests.”’^ This problem of competition among worthy but insatiable claimants for limited
resources is discussed in a later chapter. I will confine myself here to a brief comment on

*5 Justice Frankfurter, dissenting Hensley v. Union Planters Nat’l Bank, 335 U.S. 595, at 600 (1949).
56 The statutory reference is 25 U.S.C. Section 70a (1946). See Miami Tribe v. U.S., 281 F. 2d 202 (Ct. Cl.
1960), cert, denied, 366 U.S. 924 (1961); Osage Nation v. U.S., 97 F. Supp. 381 (Ct. Cl. 1951), cert, denied, 342
U.S. 896 (1951); Wilkinson, Indian Tribal Claims Before the Court of Claims, 55 Geo. L.J. 511 (1966).

57 “The Failure of Black Separatism,” Harper’s, Jan. 1970, 25, p. 31. He goes on to assert: “It is insulting
to Negroes to offer them reparations for past generations of suffering, as if the balance of an irreparable past
could be set straight with a handout.” See also supra note 10.
 Group Justice Versus Individual Justice: Equality Problems 229

a common reaction to the demandfor black reparations, epitomized by The New York
Times when it dismissed James Forman’s demands: “There is neither wealth nor wisdom
enough in the world to compensate in money for all the wrongs in history.” To point out
that Forman was asking for the redress of one wrong, not all, is an insufficient response.
A better response is the counter-question: Should no wrongs be corrected unless all can
be? In both public and private life, we constantly compare competing demands for the
redress of injustice, knowing full well that the pit is bottomless, especially since the ame¬
lioration of one ill can cause a previously tolerable condition to seem degrading by com¬
parison. This inquiry into black reparations presupposes a society that is prepared to respond
to the most meritorious of these claims, rather than dismissing all of them as man’s ine¬
luctable fate.

Because “all the wrongs in history” cannot be righted, it is ordinarily wiser to address
recent rather than ancient ones. Time is a great physician; if it does not cure an ill, it may
at least dissipate its effects. In this spirit, Germany instituted a reparations program after
World War II for Jews and other victims of Nazi persecution, even though Egypt was not
concurrently paying compensation for what Pharaoh did to the ancient Hebrews. Similarly,
the Indian Claims commission is authorized to rectify violations of our treaties with Indian

Tribes and to act favorably on claims under the “fair and honorable dealings” standard,
even though the tribes presenting the claims may have acquired their territories by conquest
from other Indians (before the white man came to America, or between that time and
westward push of the United States) and are not simultaneously offering to redress these
wrongs.
In these comments on black reparations, I have focused on the wrongs of the recent
past, the consequences of which are everywhere to be seen; slavery has figured only because
of its continuing influence on black-white relations after the Civil War. As suggested above,
had segregation not been enforced by law the residue of slavery might be hard to identify
today. If this were so, it would be quixotic to try to remedy the injustices of slavery by
compensating today’s blacks for the value of slave labor extracted from their ancestors more
than a century ago, though compensation in 1865 for the blacks’ forced labor would certainly
have been appropriate.
Time may also mitigate an injustice because the intended victim has made a virtue of
necessity. For the Jews in medieval ghettos and in the Russian Pale Settlement, for example,
isolation served as a preservative for their traditions. They enjoyed an intense communal
life, free from the values of the world outside; and no scale can balance the Talmud, which
they saved, against Voltaire, whom they foreswore. In such a case, compensation for seg¬
regation, however viciously motivated, may seem inappropriate when the passage of time
has made it impossible to say whether profit or loss predominated. To be sure, there is a
similar conflict between centrifugal and centripetal forces among American blacks: “open
occupancy” in private housing and low-rent projects in the suburbs may cost the inner
city’s black-power movement some of its leaders and members; and an integrated school
may pursue “ethnic” studies with cool impartiality, but an all-black school may give black
studies a place of honor; those who are accepted everywhere may be at home nowhere. The
day may come when the lingering effects of official segregation will coincide with voluntary
self-separation. Talk of black reparations will then be outmoded. Notwithstanding the
230 JUSTICE AND THE LEGAL SYSTEM

isolationist trends in black life today, however, racial discrimination has not proved
to be
a blessing in disguise. Unless and until it is, the case for compensation cannot be regarded
as barred by the passage of time.

Questions
1. Is the case for reparations for former slaves stronger or weaker than the Indian land
claims?

2. Once the question of reparations for groups is decided in the affirmative, who will
decide (a) which individuals in the “group” will be entitled to share in the compensation
(e.g., what about non-native spouses of Indians?), and (b) whether the group can change
its mind (e.g., can an Indian tribe decide to sell its land to real estate developers?) Do these
questions change your views about group reparations?
 231

Individualized Justice
CHAPTER SIX

6.1 Doing justice through law: The separation thesis

The Prediction Theory of Law’

David Moskowitz

Correctness, justice, and wisdom are the three elements of a judicial decision. A correct
decision is one that can be justified as an application of a pre-existing legal rule. Since I
believe that there are instances in which a departure from the pre-existing law will be justified,
it follows that the correctness of a judicial decision can be only a presumptive justification
for the decision. Not only must the judge determine what decision is demanded by the pre¬
existing law, but he must also decide whether its application in the instant case will result in
a desirable decision.
The judge should always begin the process of deciding a case by considering what decision
would be reached if the pre-existing law were to be applied. Other values, however, must be
considered by the judge in deciding a case, and these enter into the decision process because
the judge must decide whether or not to exercise his power to change the pre-existing law.
Since a correct decision, I submit, is one that can be justified as an application of a pre¬
existing legal rule, it follows that an incorrect decision is a decision that cannot be so justified.
I am, of course, assuming that there will be cases in which an incorrect decision would
be more desirable than a correct decision. There is nothing odd in this. The fact that I consider
the correct decision to be only presumptively justified and not finally justified indicates that
I believe that in some cases a correct decision will not be finally justified, though I admit
that the use of the term “incorrect” to describe this situation may appear somewhat paradoxical.
In other words, assuming that there will be cases in which the judge should change the pre¬
existing law, he must consider whether he should do so in each particular case.
An incorrect decision will be justified if the incorrect decision is a just or wise decision.
In other words, in some cases, a decision that is just or wise or both may be more desirable

1 39 Temp. L.Q. 413 (1966).

232 JUSTICE AND THE LEGAL SYSTEM

than a correct decision, and in these cases the court should reach the
just and/or wise decision,
which in these cases will also be an incorrect decision, rather than
the correct decision.
After the judge has discovered what the correct decision in the case before
him would
be, he should consider whether it would also be a just decision. A just decision
is a decision
that is a fair, suitable, and right (in the moral sense) solution to the problem before
the court,
taking into consideration all the claims of the parties in a civil case and all the
interests of
the defendant in a criminal case. A decision that is just is presumptively
justified.
A wise decision is also presumptively justified. A wise decision is one that will result in
beneficial social effects. The rule applied to reach a wise decision will result in beneficial social
effects either as a controlling force of human behavior within the society or as a guide
to
future judges. The element of wisdom is concerned with all the social effects of the decision
except those resulting from correct or just decisions.
The judge will reach an incorrect decision (i.e., he will not follow the pre-existing law)
when the undesirability of the rule outweighs the desirability of adherence to the pre-existing
law.

Notes and Questions

1. How does Moskowitz know that there are three and only three possibilities, namely,
correct-according-to-preexisting-law, just, and wise? What about other possibilities, such as
intuitively right, politically accommodating, ego-gratifying, establishment-supporting? Or prej¬
udicial? Or biased?

2. What if an attorney adopts Moskowitz’s categories and argues to the judge, “Your
Honor, you ought to reach the incorrect decision in this case and decide the case according
to justice and wisdom”? Would this approach not open the door for opposing counsel to
argue, “Your Honor, my opponent has conceded that her approach would be incorrect; all I
ask is that you decide the case correctly, which means deciding it in favor of my client”?
3. Is Moskowitz advocating a correct theory of law? Does he believe that he is advocating
a correct theory? If so, why should he label his own preferred outcome as “incorrect”?
4. Has Moskowitz constructed a trap for himself and then fallen into it? Why does he
feel he needs a notion of correctness? If law is a prediction of what courts do, then why not
just look at what courts do?
5. Note what happens when we define law as a prediction of what courts do. If courts
in fact take justice into consideration in reaching their decisions, then Justice is part of the
law! Recall that Kelsen insisted upon a sharp distinction between justice and law — yet he ran
into difficulties in describing what courts do for the simple reason that judges might not
accept such a sharp distinction between justice and law. If judges in fact intermingle legal
and justice considerations — or simply fail to distinguish sharply between what is legally required
and what is dictated by justice — then wouldn’t a thoroughly realistic view of “law” mean that
we would have to include justice in the very content of law?
 Individualized Justice 233

Comment on Normative Statements, Morality and Law

All statements (assertions, claims) are either:

1. Descriptive
2. Normative
3. Or both.

Normative statements are either:

1. Moral
2. Prudential
3. Or both.

Moral statements:

1. Apply to speaker and listener equally.

Query: Is there an exception for people who (sincerely) do not believe the statement?
2. Apply always and everywhere.
3. A person must really comply and not just appear to do so.
Prudential statements:

1. May apply either to speaker or listener or both.

2. May have spacial or temporal limitations or both.
3. A person need not really comply but must appear to comply.
Law is a prudential statement because:

1. Spacial limitation: laws apply only in their jurisdiction.

2. Temporal limitation: past laws and future law scan usually be disregarded.
3. Law applies only to persons who are within (1) and (2), which may include speaker
or listener.

4. Apparent compliance is sufficient (“objective” test).

5. No exception for people who do not believe it. (Ignorance of the law is no excuse.)

A legal statement may coincide with a moral statement. In that event, the legal statement
ought to be obeyed because:

1. It derives normative power from the underlying coincident moral statement.

2. It is prudential to obey it (or to appear to be obeying it).

A legal statement may clash with a moral statement. In that event, the legal statement ought
to be disobeyed, for whenever there is a choice between obeying the law or obeying morality,

one must obey morality (because that is what morality means). If one does not obey “morality,”
then, to that person, it is not really “morality.” Of course, if one disobeys the law in the
course of obeying moral imperatives, that disobedience may be highly imprudent (and can
result in the penalties that society imposes for violating the law).

Exercise

It is clear that Moskowitz, in the preceding excerpt, wants to depart from positivism’s
insistence that all cases should be decided solely on the basis of pre-existing law. Yet he
234 JUSTICE AND THE LEGAL SYSTEM

acknowledges the force of the positivist position by saying that all cases that
are decided on
the basis of pre-existing law are “correct” decisions.
Books have been written in an attempt to prove that either positivism or legal
realism
are complete theories of law, and other books have been written to disprove them.
The most
we can do here is to examine the conception of law that positivism and realism
share, to
show how that conception leads to the “Separation Thesis,” and then to see whether
that
conception is adequate.
Although Kelsen crafted his own variant, he clearly belongs to the reigning school of
Anglo-American jurisprudence known as “positivism.” Positivism has meant a number of
things, one of them being the idea that law is a “command” issued by an authoritative source
(such as a dictator or a legislature) and enforced by the power of the state. Some positivists
have disputed this idea, feeling that it does not seem to account for what courts do: Courts

seem to want to “find” the law rather than invent and command it. Yet all positivists — with
no exception we have been able to find — have agreed on one central tenet. They adhere to
the “Separation Thesis” — the thesis that law is entirely separate and distinct from any value-
system such as justice or morality.
The “Separation Thesis” is not always labelled as such. It arises in protean disguises;
part of the task of the advocate is to recognize it when it comes up in legal debate. Often it
is signalled by the word “irrelevant.” When an attorney attempts to point to a consideration
that the court ought to take into account, opposing counsel might object on the ground that
such a consideration is “irrelevant.” Many times when this objection arises, what is really
happening is an assertion of the Separation Thesis.
How did the Separation Thesis get started? Positivists contend that law is a fact, and as
such, it cannot be the same thing as a normative value. They say that any law can be criticized

according to the critic’s own values — for example, any person can say that a given law is
unjust. But it is still the law, whether just or unjust.
Thus, positivists claim that only confusion results if we try to intermingle law and values.
Recall that Kelsen said that law is scientifically determinable; the question of whether it is
“justified” is relegated by Kelsen to the realms of “religion and social metaphysics.”
At the center of positivism are two basic propositions: (1) a fact cannot logically give
rise to a value consideration such as justice, and (2) law is a fact. Because positivism accepts
both of these basic propositions, it concludes that law does not necessarily include justice —
that justice does not necessarily inform the law. This conclusion is another way of stating the
Separation Thesis.
Let us begin by examining critically basic proposition (1), the logical argument that a
fact cannot give rise to a value. We will use the logical term “entail” to mean “logically
compel” or “give rise to.” Consider the following logical argument (syllogism):
1. A fetus is a human life in being.
2. Abortion is an operation that kills a fetus.
3. Abortion is the killing of a human life.

Does the combination of sentences 1 and 2 entail sentence 3? Yes. Sentence 3, the conclusion,

is therefore logically “valid.” This does not mean that sentence 3 is true. The truth of sentence
3 depends on the truth of sentences 1 and 2. If either 1 or 2 were false, 3 would then be
 Individualized Justice 235

false, even though 3 is logically entailed by 1 and 2. You can see this by the tollowing
syllogism;

lA. A fetus is not a human life in being.

2. Abortion is an operation that kills a fetus.
3A. Abortion is not the killing of a human life.

This syllogism is also valid. Sentences lA and 2 entail conclusion 3 A.

In popular debate, however, one can often discern propositions of the following lorm:
IB. A fetus is a human life in being.
3B. Abortion is an operation that kills a fetus.
4B. One ought not to commit nor allow an abortion.

But it is clear that the “ought” in sentence 4B is not entailed by sentences IB and 3B. As
the philosopher David Hume demonstrated, factual premises cannot entail a moral conclusion.
We need another sentence to make the syllogism valid:

2B. One ought not to take a human life.

You might say that sentence 2B is implied in sentence IB. In other words, you might argue
that if we concede that a fetus is a human life in being, we are impliedly asserting sentence
2B. Yet many of the misunderstandings in popular debate may be traced to the assumption
that certain premises are implied. It is always best to state one’s premises clearly so that we
might see exactly whether the stated form is what is implied or meant. Thus, sentence 2B
cannot always be true. Human lives are taken in war; human lives are taken when capital
punishment is imposed; and sometimes human lives are taken in order to save other human
lives. Suppose we revised sentence 2B into the following sentence 2C:

2C. One ought not to take a human life except when absolutely necessary.

If we did, then conclusion 4C would follow:

4C. One ought not to commit nor allow an abortion except when absolutely necessary.

This, of course, is quite a different conclusion from 4B.

We live in a universe of fact. Nature proceeds in its course “red in tooth and claw.”
Animals kill and eat other animals for food. Volcanoes erupt and wipe out populations; towns
can be destroyed by floods; a succession of dry seasons can bring famines that can destroy
civilizations. Primitive people used to look at these violent manifestations of nature and
interpret them as punishments inflicted by angry gods for evildoing. But our own perspective
on these events is simply that we live on a fragile planet in a minor solar system in one of
billions of galaxies. Storms and floods occurred throughout the history of earth, long before
there were people. The evolution of life up to the era of the dinosaurs seemed to end, long
before there were humans, in the strongest form of life, yet sixty million years ago all the
dinosaurs perished, perhaps as the result of the impact of a huge meteor that collided with
the earth causing debris that darkened the skies for years, creating super-cold conditions that
wiped out the dinosaurs.
Nearly everyone agrees with Hume that a mere fact of nature cannot itself entail a value.
Just because something exists is no reason why it ought to exist. The AIDS virus exists, but
236 JUSTICE AND THE LEGAL SYSTEM

that fact cannot stand as a reason why we should not try to

eradicate it. In short, we cannot
construct a system of morality simply by looking at the facts in
the universe. In order to get
to a moral conclusion, we have to interpret those facts morall
y. Of course, once we do so,
we are putting morality in our premises; then moral conclusions will be
entailed. When we
added sentences 2C and 2D above, we were putting moral interpr
etations into the premises of
our syllogisms. Only by doing so could we derive moral conclusions.
Therefore, we have accepted basic proposition (1) of positivism and legal
realism: that a
fact or facts cannot logically entail moral values such as justice. But we
now have to face
basic proposition (2) of the realists and positivists, that law is a value-free fact. If
law is a
fact, then justice cannot necessarily be part of the law. For justice is a moral
value, and
moral values, as we have seen, cannot logically be entailed by mere statements
of fact. Thus,
if we are to refute positivism and legal realism, we must attack their basic
proposition (2).
Putting law aside for the moment, can we think of any factual statement that embodies
a value? Hilary Putnam says that the following two are examples of millions of possible
statements of that sort:

1) Yeats was a great poet.

2) The Nazis were evil.^

Of course, one might dispute that Yeats was a great poet, but that does not mean that the
statement is not factual.^
Is law a fact? Certainly in the following trivial example it is: We might say a particular
statute was passed on January 10, 1937, by majority vote in both houses of Congress, and
enacted on January 15 when President Roosevelt signed it. That much is a fact. Or we might
say that Smith v. Jones is a decided case because it appears on page 239 of volume 87 of the
Illinois Reports. But aren’t these only records of law, or evidences of law? Isn’t the law itself
a set of immaterial standards, intangible norms, and learned processes of reaching decisions
in respect of factual situations? Isn’t law a product of the human mind rather than something
that exists in the state of nature?

More than that, isn’t law addressed to the shaping and controlling of human behavior?
Doesn’t it exist only because of its efficacy in making an impact upon the decisions that
we choose in everyday life? We make some decisions, and avoid others that we could have
made, because of the pervasive influence of “the law.” Law thus exerts an immaterial, but
nevertheless potent, impact upon our decisional processes. True, law does not control our
decisions; sometimes people simply disobey the law. But there would be no point in studying
law if it did not have an influence upon human behavior.
Influences upon our behavior may nevertheless be morally neutral. The weather influ¬
ences our behavior, yet it is a morally neutral phenomenon (except, perhaps, in the minds
of primitive societies). Law, simply considered as an influence upon our behavior, may be
justice-neutral.

2 H. Putnam, The Many Faces of Realism 63 (1987)

3 One can dispute the statement “At the present moment, there arc exactly 13,783,982 red-headed persons living
in the United States,” but it is nevertheless a factual statement.
 Individualized Justice 221

But justice and morality come into the picture because law is enforced by human beings.
If Jones disobeys the law, the police may step in and arrest Jones. Or Smith may sue Jones.
As a result of the arrest or lawsuit, Jones may be forced to pay a penalty. This penalty
may be forcibly e.xtracted from Jones by the sheriff. And behind the sheriff stands the
armed might of the state. Hence, in the enforcement of law, some human beings (Judges,
sheriffs, the army) may forcibly interfere in the lives of other human beings (those who
violate the law).

Now we have more than an abstract “influence” upon behavior. We have actual, or
potential, physical interference by some human beings in the lives of other human beings.
When some human beings thus purport to interfere in the freedom of other human beings,
they typically demand justificatory arguments in support of that interference.
To see how justificatory arguments are implicated, consider the following case:

Jones is driving in the right-hand lane of a two-way street when suddenly a child
darts out in front of him from behind a parked car. Braking the car would not halt
it in time to save the child, so Jones swings his car into the left-hand lane and avoids
hitting the child. A police officer, observing the incident, stops Jones and issues him
a ticket for driving illegally on the wrong side of the street.

If Jones asks the officer why she is giving him a ticket under the circumstances, the
officer might reply, “because the law in this country is that you have to drive in the right
lane.” According to H.L.A. Hart, a leading positivist, “where rules exist, deviations from
them are not merely grounds for a prediction that hostile reactions will follow or that a
court will apply sanctions to those who break them, but are also a reason or justification
for such reaction and for applying the sanctions.”^ Thus, for Hart, the police officer has
actually given Jones a reason why he is getting a ticket. The reason is, simply, that there
is a legal rule prohibiting driving in the left lane.
Such a “reason” is hardly convincing. To be sure, it may be the officer’s only reason.
The officer may have learned, at the police academy, to give tickets to drivers who drive
in the wrong lane and to “explain” to such drivers that the reason for giving the ticket is
that there is a rule of law prohibiting a driver from driving in the left lane. Nor would
Jones be any more enlightened if he were to ask the officer why there is such a rule of law

and she responded, “because it is printed in my handbook of vehicle regulations.” Why is

it printed there? “Because,” she responds, “the legislature passed the law and ordered that
it be printed in my handbook.”
These positivist “reasons” appear to be restatements of the positivist assumption that
law is a fact. If one asks why the law is as it is, the answer given is a further fact — that
the law was duly enacted and so forth. But an entirely different result emerges if we challenge
the assumption that the rule cited by the police officer is a mere fact.
We argue as follows: it is true initially that the legislature could have chosen a rule
requiring driving in either the right lane or the left lane. In Great Britain, the traffic rule
is the left lane, in the United States and on the European continent, the rule is the right

* H. Hart, The Concept of Law 82 (1961).

238 JUSTICE AND THE LEGAL SYSTEM

lane. Certainly the initial choice of either right or left is a morally neutral choice. There

is nothing in anyone’s conception of justice that would impel a choice of either the right
lane or the left lane. (Similarly, to take another neutral-seeming law, the rule that a will
in order to be valid must be witnessed by three persons unrelated to the testator could just
as easily have been a rule requiring four witnesses, or two.)
The critical fact is that the legislature chose one lane or the other instead of simply
saying nothing and thus allowing drivers to drive in either lane at will. Thus we must ask
ourselves why the legislature chose a particular lane as an alternative to choosing nothing
at all. And here is where moral values come in: the legislature was attempting to minimize
accidents and the loss of life by providing for an orderly system of automotive traffic. The
overriding purpose of the legislation is to minimize losses of life and property.
To put the matter another way, Jones should not ask why the legislature chose to
prohibit driving in the left lane, but why the legislature chose to confine driving to one
lane only. The answer is that the legislature decided that to do so would minimize accidents.
The legislation, therefore, is not morally neutral. Rather, it embodies a moral principle —
the principle of guiding human conduct in such a manner as to minimize harm to others.
(Similarly, we should ask not why a legislature chose to require three witnesses to a will,
but why witnesses at all are needed. The answer again is a justice principle: that family
members and relatives sometimes may have what amounts to coercive power over a testator,
and so to effectuate the testator’s real and uninhibited choice regarding the disposition of
his or her property, the law requires that the signing of the will be witnessed by several
persons unrelated to the testator.)
Jones therefore has a good argument to make to the traffic-court judge when he contests
his ticket: “Your Honor, the purpose of traffic regulations is to minimize losses to lives
and property. Once in a while a situation can arise where compliance with the traffic laws
would have the immediate and foreseeable effect of harming another person. If a reasonable
alternative exists so that harm to that person can be avoided without endangering other
persons, and if that alternative requires a driver to disobey a traffic regulation, then in such
a case it would be contrary to the purpose of traffic regulations as a whole if the driver
were not relieved of the duty to comply with the particular traffic regulation in question.

By briefly driving on the left hand side of the road, I avoided running over a child.’’
Is there any way that the positivist might still argue that the traffic regulation in question
is morally neutral? By rigidly invoking the Separation Thesis, a positivist judge might rule
as follows: “Mr. Jones, there is no doubt in my mind that you did the morally correct thing
in avoiding the child. All of us should act at all times in accordance with our own sense
of justice and morality. But the traffic regulation that applies to your case makes no
exceptions for going into the opposite lane to avoid accidents. My duty is to apply the law
as it is written, not as 1 would want it to be written. As it is written, it requires drivers to
drive in the right-hand lane. The penalty for disobedience is a fine of $50. I have no
discretion in the matter; I have to apply the law that the legislature has enacted. I cannot
say that you obeyed the law; clearly you disobeyed it. Of course you disobeyed it for a
good reason. And so I say to you, Mr. Jones, $50 is a small price to pay for saving the

life of a child. I find you guilty; please see the clerk to arrange for payment of the fine.’’
Is the judge’s response satisfactory? Does it constitute a full justification for the impo-
 Individualized Justice 239

sition of the $50 fine? Jones could reply as follows: “Your honor, 1 can afford to pay the
$50, but as a matter of principle 1 intensely dislike being convicted of a misdemeanor, even
a very small one such as this. 1 try to obey the law. 1 think that 1 did obey the law when
I avoided hitting the child, because 1 was obeying the traffic regulations as a whole, and
not any particular regulation, and the traffic regulations as a whole are designed to avoid
accidents. What 1 did was avoid an accident. 1 can’t see how that is illegal.”
This argument may not convince a positivist judge, who can reply: “If the legislature
wanted to pass a statute that simply said, ‘Drive in such a way as to avoid accidents,’ the
legislature would have done so. Instead, the legislature decided to make specific traffic
regulations. My job is to apply these specific regulations, which is what I have done in your
case.”
But would the following argument make a difference? Jones says: “Your Honor, if you
impose fines on all drivers who swing temporarily into the left lane to avoid hitting a
darting child or a pedestrian who has negligently entered the street, you will eventually
teach the public to drive only in the right lane no matter what the cost, because the public
as a whole wants to obey the law. And the result of training drivers never to cross the
median strip and go into the left lane will inevitably be cases where drivers run over children
or other pedestrians.”
The positivist judge cannot dispute this argument, because she knows that law does
have an impact upon behavior — an impact that in some cases overrides a person’s moral
impulses. Not everyone will disobey the law in order to vindicate a moral principle; many
people if faced with such a dilemma will comply with the law. So the judge is forced to
answer as follows: “If what you say does occur, Mr. Jones, the legislature will hear about
it, and will be forced, under public pressure, to amend the traffic regulation so as to provide
an exception to the right-hand-lane rule. When they enact an exception that allows drivers
to go into the left lane temporarily in order to avoid hitting a darting child, then 1 will
faithfully apply that exception to cases such as yours. But until then, you have violated the

law.”
The judge, in short, is willing to risk sacrificing the lives of several children to bring
pressure on the legislature to modify their rule. But why should the judge have such a
narrow conception of her own duty in the matter? Why should the judge feel duty-bound
to apply a law which, under her own theory, is simply a value-free fact? What conception
does she have of the office of judge that would lead her to accept the death of one or more
children as a price for getting the law changed? What moral force exists in a value-free law
that would override the judge’s moral responsibility to unnamed innocent children? Would
the legislature itself want judges to apply rules so rigidly? Would the legislature be happy
reading about a driver who failed to drive around a darting child because the driver felt
constrained to comply with the legislature’s rule? Would a legislator who participated in
the making of such a rule recognize the fairness of such an application? Or would the

legislator instead criticize the judge in Jones’ case for teaching the community such a
mechanical interpretation of the law?
There is no adequate reason why the judge should feel an obligation to apply a value-
free rule when its application can result in the potential death of innocent children who
might dart into the street. And that is why most judges, in practice, would find Jones not
240 JUSTICE AND THE LEGAL SYSTEM

guilty. Indeed, it is why most police officers would not give Jones a ticket in the first place.
Our example has been a peculiar one, designed to test the underpinnings of positivist theory.
While it brings out the need for enforcers of the law to have justificatory arguments, the
example fortunately is not representative of real-world situations of judicial behavior.
We see in this example that positivism itself is a self-actualizing theory. If a judge
starts with the premise that laws are morally neutral, she may consistently arrive at a result
such as finding Jones guilty even while praising his moral courage in violating the law. But
such a premise also requires the judge to attempt to shift the responsibility for tragic
applications of the law to the legislature. Such a shifting of responsibility comes at the cost
of encouraging — by the rigid application of rules — a number of unavoided tragic accidents.
Is there any good reason for a judge to constrict herself so much, to wear moral blinders,
just to enforce a law which the judge says is value-free (and being value-free must be
indifferent as to whether it is enforced or not)?
If there is no good reason for a judge to do that, then can there be any good reason
to adopt the Separation Thesis in the first place? The Separation Thesis is not a description
of law; rather, it is simply a first premiss, a postulate. (Did Kelsen prove it or did he simply
assert it?) May we not reject the Separation Thesis if, for us, it fails to explain judicial
behavior?
Even a law as seemingly neutral as the traffic regulation requiring driving in the right-
hand lane turns out not to be morally neutral. Can any law at all ever be value-free? Law
regulates human conduct and serves to justify the imposition of penalties upon people for
behavior contrary to law. Since law has this overwhelming, comprehensive purpose, and
since a justificatory reason always seems to be necessary to account for why judges and
sheriffs apply and enforce the law, may we not conclude that arguments of justice are
intrinsic to the law? In other words, may we not conclude that the Separation Thesis is
invalid?
Note that we never said that all laws have to be just; there may be unjust laws. We
have only asserted the non-existence of morally neutral laws. We saw, in Chapter 3, Judge
Devlin wrestling with the question whether to enforce laws that regulate private behavior.
To Judge Devlin, such laws were certainly value-laden. He addressed himself to the question
of whether judges should enforce such laws in two cases: when a majority of the public
supported such legislation, and when a majority of the public no longer supported such
legislation even though it remains on the books. But in neither of these cases did Judge
Devlin claim that the laws were value-neutral, or that justice did not enter into the picture
of what a judge should do in a case where enforcement of the laws was at issue.
Let us consider the positivists’ argument that a legislature can enact any statute it
pleases. Nevertheless, there are constraints upon a legislature. In a democracy, legislators
want to be reelected; in an undemocratic state, they at least want to avoid antagonizing
the public to the point of revolution. Moreover, legislators have a stake in keeping public
order. Their own positions and personal power would be nil in a state of anarchy or chaos.
Order cannot be kept at gunpoint; if police were needed to keep close guard upon every
citizen all the time, then a second phalanx of police would be needed to ensure that the
first group did their jobs, and so on to a third level of enforcement; the result is an infinite
regress. Rather, the intrinsic sense of stability— or, we contend, of justice— is what makes
 Individualized Justice 241

most legislation acceptable to the public. Societies are stable largely to the extent that the
public perceives that the legal order is, on the whole, just.
None of this is to argue that each and every piece of legislation must be perceptively
just. For one thing, even in a just society we will likely have a difference between macro¬
justice and micro-justice. Micro-justice is the impossible ideal: every rule and regulation is
itself just. Macro-justice, on the other hand, recognizes that some rules and regulations will
be unjust to some groups, and others will be unjust to other groups. The system is in a
state of macro-justice if all these injustices more or less cancel each other out. For instance,
a progressive income tax may appear to be unjust to high-income taxpayers. But the system
may also have a sales tax, which is for the most part regressive and hence impacts dispro¬
portionately upon the lowest-income taxpayers. The combination of the two taxes, each
unfair but to a different group, might have a canceling-out effect when considered from a
macro-perspective.
Another possibility is that some laws will be unjust without destroying the over-all
contention that justice is at the basis of legislation in general. Suppose Oregon passes a
vehicle safety act that specifically exempts lumber-carrying trucks. These trucks, which
sometimes are the equivalent length of three buses, carry enormous logs from lumber camps
to processing mills. A victim of an accident caused by a lumber truck that was unable to
stop in the normal time that other vehicles could stop would probably say that it was unjust
to exempt these trucks from the safety regulations. The victim might also be able to point
to special-interest lobbying that led to the exemption passed by the state legislature for the
lumber industry. Would that mean that the exemption was unjust? Not necessarily. The
public might be sufficiently dependent economically on the lumber industry to make it fair
for the public to decide to absorb some vehicular accidents rather than pass legislation that
might make it competitively impossible for the lumber industry in Oregon to stay in business.
Whether we are considering legislation or judicial precedents, “justice” seems to have
formed a part of their creation and hence “justice” seems relevant in interpreting their
applicability to the issue at hand. The Separation Thesis, after all, is not itself a Law
embodied in our Constitution. Rather, it is simply a theory of law. It has a certain immediate
appeal — because it is easier for people to consider that the world of facts and the world of
values are two different worlds, than to engage in the intellectually more difficult task of
understanding that they are simply two perspectives on one world — the world we actually
have. When we look at the legal world, we see that laws are incomplete if we interpret them
solely as facts, and equally incomplete if we interpret them solely as values. The Separation
Thesis requires us to distinguish between two things that are aspects of the same phenom¬
enon — something akin to distinguishing between procedure and substance in the law when
we know that procedure and substance are constantly and inevitably interacting with each
other all the time.
Fortunately, we are not required to accept the Separation Thesis. But since many
people — especially judges — subconsciously accept some degree of separation between law
and justice, we have to make a special effort to recognize the Separation Thesis when it is
being played like background music, and to argue effectively for a change of tune.
In light of this Exercise, consider the following Juvenile Court case.
242 JUSTICE AND THE LEGAL SYSTEM

In the Interest of Alice and Betty S.®

Circuit Court of Cook County, Illinois,
Juvenile Division
May 1, 1991
Judge R. Morgan Hamilton, presiding. minors to lie about how Carol had been burned.
THE COURT. Ladies and Gentlemen, the Court Supplemental Social indicates the mother hit
has reviewed the testimony presented in this case the minors with her hands, stick, belt, electric
and all of the evidence offered as well including cord on the face and body; that the mother hit
the Social Investigation, the thoroughly detailed Carol
board; in the head with a stick, knife handle,
and comprehensive Supplemental Social Investi¬
gation, all of the records in the court file. That there were 12 scars on the top of Carol’s
scars;
head. They were untreated and they were deep
I have read them all many times and spent
a number of hours reviewing that evidence.
As a result the Court has considered the fol¬ That Carol also had old, untreated bone frac¬
tures to her right arm, right leg, and that these
lowing, which I want to read in the record, so were untreated;
you will understand on what my decision is based.
That Carol had bruises and abrasions to her
Court considered the Supplemental Social,
face due to blunt trauma, and that on November
dated November 9th, 1990, which indicates that
Alice was born February 2nd, 1984, Betty was 6th, 1986 at the age of 20 months — which is prior
born May 13th, 1980; to this case coming into court — Carol had been
found to be dehydrated with abrasions on both
That these children have four siblings. Their
shoulders and both of her feet were broken;
birth dates, there appears to be a typographical
That Carol had slept and ate on the floor,
error, but what is stated in the Supplemental
stayed all day in a bedroom and on the floor and
Social, the birth dates of siblings is September
was sometimes not allowed use the bathroom;
21st, 1975, June 21st, 1978, July 26th, 1978, and
often;That the minors were left alone at home
September 21st, 1975.
This document indicates that there has been,
That Carol had been sexually abused;
the testimony was there was a sib named Carol
That Betty had been sexually abused;
on July 10th, 1988. At that time she was three
That Alice had been sexually abused;
years old. That the father had stated to the preparers
The death was due to thermo burns due to
of that document that women bring only tragedy
scalding and was determined to be homicide by in his life;
the mother’s boyfriend; That the father leaves for work at 6:00 a.m.;
That mother was present when Carol was That the father sometimes works late and
scalded, and that the boyfriend left Carol in the
comes home around 11:00 p.m., sometimes as
tub and took mother to work, took the siblings
often as three nights per week;
in this case — these two minors — to school, then That the mother visits these minors every
to day care respectively, and that according to week and brings activities to share with them;
Betty the mother and her boyfriend told these That the minors always look forward to the
visits with the mother;
That on November 8th, 1990 the minors dis¬
cussed foster home placement with their mother;
5 The names of the children are pseudonyms, and
That the father’s home has an empty bed¬
we are only using the first initial of their last name.
The transcript was released to us by special order of room that is designated as the minors’ room;
That the father has no child care plan;
the Presiding Judge of the Juvenile Division of the Cir¬
cuit Court of Cook County, Judge Arthur Hamilton.
That the mother has a history of being
involved with abusive men.
[Eds.]
 Individualized Justice 243

or baths;
At Page 32 it is noted specifically father
stated to DCFS* that “the only way a woman will That report stated regarding Betty that Betty
obey and respond to a man is by beating her up”; says that her mother was there when Carol was
and also at this same page that father is a hard burned.
worker but a marginal provider for his sons;
Court reviewed the Psychological Evaluation
That his home is scarcely furnished; of the mother dated November 25th, 1989. That
That the meals are not balanced, there is not
report states that the maternal grandiather sold
enough food, and the boys do not obey the father the mother to the father at age 15;
as per the father’s own statements; father;That the mother was raped and hit by the
That the father loves all of his children but
there is no communication between father and the That she married the father;
minors; That the mother denied sex abuse of the girls
That the father speaks badly of the mother and that the mother left the father due to physical
to the boys and to Alice and Betty and that the and emotional abuse.
boys despise their mother; This report signed by Dr. Carlos Acosta,
That the father does not have much to offer Ph.D., recommended family therapy, weekend
to the minors in the way of parenting, nurturing, visits with the mother, parenting skills program,
and care and the recommendation was that the and a possible return to the mother in six months.
mother was to continue to have two hours of Court reviewed the Psychological Evaluation
supervised visits weekly, father to have unsuper¬ of the father dated November 23rd, 1989 and in
vised weekend visits as soon as he sets up a bed¬ that report father denies that he bought or raped
room with a door and beds for the minors. the mother and states that he only hit the mother
In the addendum to the Supplemental Social, once.
dated January 22, 1991, Court reviewed that the The four boys appear to be happy, living
father was on a waiting list for a Hispanic home¬ with the father.
maker, that the recommendation was for parenting The boys are hostile against the mother.
classes for both parents;
The minors enjoy the father’s visit. Father
That the mother has good interaction with appears to try his best within his limitations.
the minors during the visits and that they are two Father accepts the challenge of the examiner
hours in length and supervised on a weekly basis; to change his attitude — excuse me, to change the
That on January 22th, 1991 DCFS made an attitude of the boys toward their mother.
unannounced home visit to the father’s home, The recommendation in this report prepared
found the home to be disorganized — there were by Dr. Carlos Acosta, Ph.D., was parenting skills,
piles of clothes on the floor, closet, and bedroom; family therapy, for the boys to meet with the
That there was not enough food, no milk, mother, for weekend visitation with the father and
meat or fresh food, no cereal, or just no bed for the brothers and a possible return to the parents
the minors, no child care plan, no emergency in six months.
plan; Court reviewed the reports from Dr.
Court reviewed the Home report dated Acosta — one dated November 9th, 1990, w'hich
November 8th, 1990 which reported that Alice had stated that the parents were not ready to take the
a fear of bath tubs, that she had to have Betty minors, that they deny their part in the tragedy
close, that she never asked about her mother or and one dated June 26th, ‘90 stating Betty says
father; she is no longer scared of males.
That asking for help for her was difficult; Report indicated mother and father feel very
That Alice feels that mistakes can be deadly, angry with each other; that father is having good
and; control of the boys at this point and that in the
That now she is no longer afraid of the dark father’s home there are five males and this is
intimidating.
I made no notes concerning the report dated
December 11th 1989. I did read it.
* Department of Children and Family Services, Court reviewed the report dated March 6th,
State of Illinois. [Eds.] 1990, still Dr. Acosta’s report, which stated there
244 JUSTICE AND THE LEGAL SYSTEM

was individual therapy for the mother, family ther¬ You have had — You have all had an oppor¬
apy for the father, and the boys and children’s tunity
therapy with the minors. to me? to see the Order Miss O’Brien has handed

He referred to mother’s history of abuse that MS. KAVANAGH. Yes.

was so intense that it requires long-term therapy.
He stated that the minors are angry about MS. ROSAS. Yes.

the parents because the parents did not take good THE COURT. You are all satisfied with the word¬
care of them.
ing here?
Court reviewed Dr. Acosta’s report April MS. KAVANAGH. As I indicated the State poses
5th, 1991 stating mother is now able to accept
an objection.
responsibility, some aspects of abuse, and that
marital therapy has begun; THE COURT. Miss Kavanagh, it is appropriate
That the father had difficulty accepting that to stand up, and then 1 will recognize you.
his wife has rights and something to say for the MS. KAVANAGH. As I indicated earlier the State
good of the family and that the father resented is not in agreement as to mother based upon —
marital therapy, but he is cooperating;
THE COURT. Miss Kavanagh, this is not an
That Dr. Acosta reviewed his plan of six
agreed Order. This is an Order of the Court based
months of marital therapy to be followed by fam¬
on everyone resting and the findings of the court
ily therapy.
and all of the testimony and all of the evidence
I also considered the testimony of all wit¬ heard.
nesses who testified on our witness stand and
It will not be entered as an agreed Order. It
made some suggestions and interim findings to will be entered as an Order of this Court.
all parties on the last court date and following a
MS. KAVANAGH. Your Honor, as I indicated
conference in chambers and everyone’s decision
to rest my findings are as follows: earlier in August of ’90 the Court made a finding
That it is in the best interest of Alice and of unfitness in that mother actively participated
and inflicted abuse on not only these minors but
Betty that they have unsupervised weekly day vis¬
its with their mother; really herself.
That the initial length of those visits be I believe the Court was very clear in that
finding.
actual time spent between mother and minors of
two hours; As such my understanding is that Section
That the length of the unsupervised visits 802-23 mandates that custody shall not be
with the mother may be increased from two hours restored until such time as a hearing is held and
per visit up to a maximum of eight hours per visit the Court enters an Order finding that mother is
at DCFS discretion and without further court in fact fit.
order. I understand that the court is not restoring
However, the length of the visits, once they custody at this point to mother; therefore, we have
are increased, may not be decreased or suspended not proceeded in the matter of the fitness hearing.
or terminated without a court order. However, it is the State’s position that the
I find that unsupervised visits by the mother court is effectively restoring a limited custody to
should begin immediately subject to whatever you the mother and I believe in the spirit of 802-23
have all worked out in this draft order and that that goes towards protecting the children in that
mother shall insure that no males are present at it requires the parent who has been found unfit
any of the visits except members of the family to go forward and present evidence showing that
who have been screened by DCFS and 1 find a the children in fact will be safe.
violation of the no males present requirement may It is the State’s position, your Honor, that
result in a return to supervised visits. based upon the testimony presented to this court
I find it is in the best interest of these minors of Dr. Acosta he was clear that he would not

that this court review mother’s visitation in three recommend unsupervised visits; that in his opin¬
ion if an abuse situation were to occur and mother
months without the need for a Supplemental Peti¬
tion for that reason and that these visits may be was sole supervisor he did not know if she would
modified at that time. be able to protect the children.
 Individualized Justice 245

For that reason. Judge, 1 would ask the court

after the graduation four or five months ago when
to clarify as to whether or not you are finding — Betty was proud of and felt good of the mother;
your finding on unfitness stands. That the minors would benefit from more
1 would also like to make clear to the Court
family outings with the mother and mother would
and for the record the reason why the State is in benefit from rules and 1 have made rules;
disagreement as to unsupervised visits. That he is with the mother for one hour a
1 believe the facts on this case were heinous
week and has spent approximately 100 hours with
and 1 believe the issue — it is clear the mother has her and she has improved with her understanding
issues to work on. of responsibilities and made great improvement;
Until those issues are worked out we are con¬
she has complied with all of his rec¬
That ons;
ommendati
cerned as to the safety of the children.
1 believe at this point the evidence has not That she has followed all of his recommen¬
shown that those children will be safe during unsu¬ dations and he believes she will continue to comply
pervised visits. and the minors would benefit from longer visits
THE COURT. 1 am satisfied that the evidence has with the mother starting with April 16th, the date
of the inquiry, and that the mother would also
shown quite the contrary; that the mother has
benefit from longer visits with the minors.
always been appropriate during each and every
visit that she has had with the children. While he was not prepared to recommend
unsupervised visits I have to look at the total
Not only has she been appropriate but coop¬
picture. Miss Kavanagh, which 1 have done and
erated fully with the Service Plan and always
having looked at the total picture I am satisfied
been — has done everything she has been asked to
do. that on my terms, following my Order these
minors will be safe with their mother.
She has also made progress in accepting her
Now, let’s address the issue of fitness.
responsibility for what has happened to her chil¬
Before the minors can be returned to their moth¬
dren and that she will be safe during visitation
er’s care there must be a fitness hearing.
and 1 do not equate custody with visitation oth¬ There has been none.
erwise we would need only one word — custody or So, my findings in regards to fitness to be
visitation.
the custodial parent stands.
1 want to refer to my notes.
In terms of ability to care during a two-hour
MS. KAVANAGH. Judge, just to clarify — visitation which DCFS has the authority to
increase I am satisfied she is fit for those visita¬
THE COURT. No, no. Now it is my turn. You tions.
have had your turn.
That is separate and apart from fit to be the
1 am looking at Dr. Acosta’s testimony on custodial parent as I interpret the statute.
April 16th under Cross Examination by the
Was there any other issue you wanted to
mother.
address?
It states that the minors have been in therapy
with him for two years, that they are always there MS. KAVANAGH. No, Judge. You are therefore
stating mother is fine and fitness stands?
together, they are always there for one hour every
week; THE COURT. In regards to custody yes. Court
That he has had a conversation with Betty will vacate the previously entered temporary cus¬
regarding visits with the mother and she enjoys tody order, advise all of the parties that if you
meeting with her mother; are dissatisfied with the Court’s decision then you
That he would need to ask her if she wants do have the right to appeal that decision and to
longer visits with the mother; do so you must file appropriate papers with the
That Alice enjoys visits with the mother; Court within the prescribed period of time.^
That in the last six months minors went to
a family event with the mother — they went to the
mother’s graduation and they were very proud of 7 As this coursebook went to press, the editors have
this mother; been informed that the State of Illinois has filed an
That he had a conversation with Betty right appeal in this case. [Eds.]
246 JUSTICE AND THE LEGAL SYSTEM

Notes and Questions

1. Two months before Judge Hamilton’s decision in the case you have just read, one
of her earlier child custody cases was reversed by an Illinois appeals court.® In that prior
case, Judge Hamilton had taken a four-year-old child out of a foster home and remitted
the child to the exclusive private guardianship and custody of the child’s grandmother. The
Appellate Court reversed, saying in part;

It is well established that the paramount consideration in all guardianship and

child custody cases is the best interest of the child. The best interest of the child

takes precedence over even a natural parent’s superior right to custody of his child.
Section l-2(3)(c) of the Juvenile Court Act specifically states that “the parents’
right to the custody of their child shall not prevail when the court determines that
it is contrary to the best interests of the child.” Ill. Rev. Stat. 1989, ch. 37, par.
801-2(3)(c).

The Appellate Court found that Judge Hamilton’s judgment was “contrary to the manifest
weight of the evidence,” and remitted the child back to the foster home.
2. Immediately after Judge Hamilton’s decision, columnist Mike Royko wrote a column
in the form of a letter to Chief Judge Harry Comerford, headed “Why is This Judge in
Juvenile Court?”’ Here are some quotations from Royko’s column:
When you have a few minutes, will you explain why in the hell you have
someone like Judge Morgan Hamilton sitting in Juvenile Court?
As you know — and if you don’t, you should — Mrs. T. stood by in 1988 when
her boyfriend poured boiling water over her 3-year-old daughter. [Carol] died.
Mom didn’t ... go to prison. The prosecutors had hoped that she would testify
against Leonardo and didn’t bring charges against her. When Leonardo copped a
plea, her testimony was unnecessary, and she was off the hook.

Royko then says Judge Hamilton’s order giving the mother unsupervised visiting privileges
is usually followed by the mother asking that she be declared fit and getting her children

back. Royko ends by calling upon Judge Comerford to transfer Judge Hamilton to a “more
suitable court,” like Traffic Court. He ends with a threat: that if Judge Comerford does
not act, Royko will remind the voters “the next time there is an election for judges.”
Royko’s column appeared in the Chicago Tribune’s morning edition. By the end of the
same day. Judge Comerford had acted. He transferred Judge Hamilton out of Juvenile
Court to the First Municipal District. In a Chicago Tribune news story the following
morning,’® the presiding judge of the First Municipal District was quoted as reporting that

8 The case is In the Interest of Violetta B. v. Joe Ann Stanciel, 210 Ill. App. 3d 521, 568 N.E.2d 1345 (111.
App. 1st Dist. 4th Div. 1991)
’ Chicago Tribune, May 3, 1991, at p. 3.

’0 Juvenile Courl Judge Under Fire for Decisions is Transferred, Chicago Tribune, May 4, 1991, ai p. 5.
 Individualized Justice 247

Judge Hamilton told Judge Comert'ord “that she has had it with following the law and
getting hammered for it and said, ‘Send me somewhere where 1 can follow the law and not
get hammered.’” The news story also quotes an unidentified lawyer who practiced belore
Judge Hamilton, who said that Judge Hamilton “tried to force families to stay together
under almost any circumstances, regardless of what the children felt.”
Then a news commentator on Channel 5, Attorney Virginia Martinez, scolded Royko
for being cruel to a judge. She said, “Judges are required to make tough decisions. We
cannot allow them to be sitting ducks for commentators who ignore a judge’s entire record
and ignore the facts of a particular case to present a slanted picture to incite public outrage.”
Royko replied a few days later.” He said that Martinez was right in saying that Royko
incited public outrage about the case. He said that as long as Juvenile Court is “going to
go on giving abused children as much respect as laboratory rats. I’m going to go on inciting
public outrage. And Ms. Martinez and Channel 5 can take that and stick it in their
earphones.”
A few days later, the Chicago Daily Law Bulletin presented a lead story reporting a

“flurry of criticism” by local bench and bar groups of the transfer of Judge Hamilton.’’
The groups included the Illinois Judicial Council, the Chicago Council of Lawyers, and
various juvenile law specialists. The newspaper quotes a letter to Judge Comerford from
the Chicago Council of Lawyers:

There is concern that your failure to support a judge who took an unpopular
position will discourage other judges from reaching difficult decisions, even if they
are following the law. ... By deferring to Mr. Royko’s opinion, you have unfor¬
tunately contributed to an atmosphere in which judges cannot follow the dictates
of the law without fear that an unpopular decision will lead to reassignment.

Royko shot back in a subsequent column: “I think they’re overreacting. I don’t write
about judges often enough to cause them all to sit around trembling. And when 1 do write
about them, hordes of lawyers usually leap to their defense.””
3. Was Judge Hamilton following “the dictates of the law,” as the Chicago Council
of Lawyers put it? Or should the above-quoted letter from the Chicago Council be interpreted
as saying that whatever judges decide, they are deciding according to the dictates of the
law?
4. Are child custody cases different from other legal disputes? Do they depend so much
upon the demeanor of the prospective custodians that only a sitting judge can decide which

of the contending parties should be entitled to custody over a child? Even if the “demeanor”
evidence is so important, can we be sure that judges will correctly interpret and understand
that evidence?

5. Is the remark attributed to Judge Hamilton — that she was “hammered” for “fol-

” Judge's Defender Got One Thing Right, Chicago Tribune, May 10, 1991, at p. 3.
12 Bar Groups Criticize Transfer of Judge From Juvenile Court, Chicago Daily Law Bulletin, May 14,
1991, at p. 1.

13 Judge’s Defenders Man the Ramparts, Chicago Tribune, May 17, 1991, at p. 3.
248 JUSTICE AND THE LEGAL SYSTEM

lowing the law” an implicit admission by the Judge that she had to give the mother
unsupervised visitation rights over Alice and Betty even though she might not have done
so if she had unfettered discretion in the matter! If so, what does that tell us about the
Separation Thesis?

Comment on Judges and Justice Arguments

We have seen that it is not easy to prove that justice is part of the law in the sense
that a judge is required to consider justice arguments in reaching a decision. Yet we can
not overlook one critically important empirical fact; many if not most judges routinely do
consider justice arguments in reaching their decisions on the law. They do so either directly
or indirectly, as we have been seeing throughout this coursebook. Thus we may have a
situation where judicial behavior is at variance with currently prevailing theories of law —
at least to the extent that some version of Kelsen’s thesis reflects the present consensus. If
so, the situation is encouraging. It charges us with the task of finding a theory of law that
adequately describes the judicial behavior that takes place in the real world. If positivism
does not do so, so much the worse for positivism.
But although many judges routinely consider justice arguments, or refer to their own
theories of what is fair and just, in reaching decisions, some may do so uneasily. They may
believe that they are going beyond the law. If this is what they believe, then their own legal
philosophies correspond with positivism even if they overtly disclaim a positivistic bent.
Furthermore, they will always be open, in a given case, to the argument “Your Honor, we
have the law on our side; the other side is talking about justice, and while we are all in
favor of justice, that is a question for the legislature in enacting new laws and not a question
for a judge in applying the law that the legislature has already enacted.” Such an argument
is rhetorically powerful if the judge is a positivist or is heavily influenced by the positivist
rhetoric that has pervaded Anglo-American jurisprudence for the last hundred years.
It is, therefore, crucial that any attorney who wants to argue a “justice” position must
ground that position in a thorough understanding of the way to refute the Separation Thesis.
For if the judge has a mental picture that separates law and justice, it will be extremely
difficult if not impossible to convince the judge to follow the dictates of justice instead of
the dictates of law. The only litigative strategy that has any chance of success is to argue
the invalidity of the Separation Thesis itself.
Thus an argumentative method that succeeds in refuting — or more than that, in demol¬
ishing— the Separation Thesis is a necessary part of the equipment of attorneys who argue
cases before courts. The Exercise you just completed can be of critical importance in your
own preparation for legal argument in court, because if you are prepared with a way to
recognize the Separation Thesis when it appears in covert disguise in the course of debate,
and additionally are prepared with a way to combat it, you may be more efficacious as a
practitioner of law.
Moreover, the Exercise may in time have the impressive consequence of becoming self-
 Individualized Justice 249

validating. If judges in particular and legal scholars in general become convinced that the
Separation Thesis is incorrect, judges will increasingly become more overt in using “justice”
arguments and fairness considerations in their opinions, and will lose their sense of uneasiness
when importing justice factors into their decisions. This increasing overtness may serve to
make law more predictable (and hence more just to people who want to know what the
law is so that they can engage in rational planning), because it will bring out into the open
the justice considerations that are presently operating sub rosa.
As judges (or future judges, of which you may be one) understand the problems with
the Separation Thesis, they may become increasingly impatient with arguments such as the
one given above. They will respond: “Your argument would make sense if law were one
thing and justice another, but in fact there is no such separation.” Finally, justice arguments
may become an increasingly important part of the legal preparation of all attorneys, irre¬
spective of which side of a case they are on. Arguing a case will include structuring the
argument to comport with underlying principles of justice that are latent in the rules of
law at issue in the case. Each side will want to demonstrate that if the law at issue is
properly interpreted, justice will require a favorable decision.
Thus, knowing how to refute the Separation Thesis may be of critical importance in
helping to shape as well as validate present judicial behavior. This Exercise is not the last
word in refuting the Separation Thesis — it is a mere beginning — for the task of perceiving
the relation of law and justice is the task of a professional lifetime.

6.2 Doing justice apart from law: The heritage of equity

A History of English Law

Sir William Holdsworth

The distinction between the strict rule of law and modifications of that law on equitable
or moral grounds is a distinction well known to many systems of law; and it was familiar
to English lawyers from the twelfth century onwards. It is not therefore the distinction
between law and equity which is peculiar to English law. What is peculiar is the vesting of
the administration of law and equity in two quite separate tribunals. The result has been
that the distinction between law and equity has in England been given a sharpness and a
permanence which it possesses in no other legal system.
[All the] common law tribunals ceased to administer equity. Litigants, if they wanted
equity, were driven to a tribunal the procedure of which had remained free from the technical
rules which governed the procedure of the common law courts; and so cases which called
for equity went to the Council and later to the Chancery. The precocious fixity attained by
the rules of the common law had caused the administration of equity to be handed over
to a tribunal which had come to be perfectly distinct from any of the common law courts.
And this is the origin of the most unique feature of English as contrasted with, for instance,

Vol. 1, 446, 449 (7th ed., A. Goodhart and H.G. Hanbury eds. 1956).
250 JUSTICE AND THE LEGAL SYSTEM

Roman equity. The Roman praetor urbanus administered both law and equity; and therefore
it was easier to fuse the two systems: the Chancellor and the common law judges were
distinct and often rival authorities.

An Introduction to English Legal History’’

J.H. Baker

By Tudor times it was a trite saying that the Chancery was not a court of law but a
court of conscience. Developments in the system of pleading and discussing cases en banc
had by then generated the modern conception of law as a body of rules applicable to given
sets of facts. The chancellor, by way of contrast, was not concerned with rules but with
individual cases. He combined the role of judge and jury, and in delving as deeply as
conscience required into the particular circumstances before him he did not distinguish fact
and law. Inevitably the chancellor’s justice was seen as something superior to the less flexible
justice of the [law courts]. Indeed, if proceedings in other courts were in themselves uncon¬
scionable, the chancellor would issue injunctions to stop them. This transcendent justice
acquired the name “equity.”
Equity was a classical notion, defined by Aristotle as “a correction of law where it is
defective owing to its universality.” The idea was well known to medieval scholars. Glanvill
mentions it as an ingredient in the common law, and throughout the year-book period it
was applied to the interpretation of statutes. But it was a particularly apt term for the
function of the chancellor. As early as 1468, a temporary keeper of the great seal was

charged to determine all matters in Chancery “according to equity and conscience.””

Generations later. Lord Ellesmere explained that the reason why there was a Chancery was
“that men’s actions are so diverse and infinite that it is impossible to make any general
law which may aptly meet with every particular and not fail in some circumstances. The
office of the chancellor is to correct men’s consciences for frauds, breaches of trust, wrongs
and oppressions of what nature soever they be, and to soften and mollify the extremity of

the law.’”^
The shift from “conscience” to “equity” was more than a change of vocabulary. It is
not certain how medieval chancellors reached their decisions, but “conscience” has a sub¬
jective ring to it; guided no doubt by their training in theology and Canon law, they were
driven back onto their own consciences. The clerical chancellors were exercising the temporal
counterpart of the confessional. In the early sixteenth century we hear grumbles amongst
the lawyers about such an arbitrary function, and the dissatisfaction came to a head under
Cardinal Wolsey (Chancellor from 1515 to 1529), who had no academic training at all.
Wolsey delighted in putting down lawyers, had an arrogant confidence in his own untutored

13 Pp. 89-92 (2d ed. 1979).

16 XI Rymer’s Foedera 579 (G. Holmes & R. Sanderson ed.).
17 Earl of Oxford’s Case (1615), 1 Rep Ch 1 at 6.
 Individualized Justice 251

common sense, and in his desire to please plaintiffs too often left a sense of injustice. The
chancellor’s jurisdiction had visibly become another system of secular justice, sharing all
the failings of human institutions; and the decisions of an unlearned chancellor, unacquainted

with the reasoning of the common law, easily offended at least the lawyers’ sense ol fairness.
A strong reaction to the arbitrariness of the Chancery appeared in a treatise written by an
anonymous “serjeant-at-law” shortly after Wolsey’s death. The serjeant “marvelled” that
the chancellor should presume to interfere by subpoena with the king’s law, which was the
inheritance of the subject. Conscience was a variable standard, for “divers men, divers
consciences”; and it offended the rule of law. The serjeant went so far as to assert that
the chancellor’s jurisdiction was founded on ignorance of the merits of the common law,
and that it was contrary both to reason and the law of God.’®
The rift was partly closed by Wolsey’s successor. Sir Thomas More (1529-33), the first
chancellor since the fourteenth century to have been trained in the inns of court. More had
earlier written that to allow even a good judge to follow his own whim would defeat the
principle that justice must be seen to be done, and would leave people in a condition of
slavery.” He nevertheless thought the common law was too “rigorous,” and he not only
exercised the equitable jurisdiction but continued the practice of inhibiting common law
actions by injunction. When the judges complained, he invited them to dinner and told
them that it belonged to their own discretion “to mitigate and reform the rigour of the
law”; if they would do so, he promised he would issue no more injunctions. The judges
declined the offer, because, as More later told his biographer, “they may by the verdict of
the jury cast off all quarrels from themselves upon them, which they account their chief
defence”.^® The judges had no wish to become involved in decisions of fact, and therefore
could not tackle questions of conscience.^’ In truth the judges did introduce some equity
into the law by means of actions on the case; but their flat rejection of More’s proposal
destined equity to develop in England as a system separated from the common law. Until
More’s time it could still be argued that equity or conscience operated in all courts, albeit
to an extent which varied with the degree to which individual circumstances could be revealed
to the court. As late as 1550 it was said by the King’s Bench that “conscience is aequum
et bonum, which is the basis of every law.” But thereafter equity would increasingly be
regarded as the peculiar prerogative of the Court of Chancery. As a consequence, equity
itself became a kind of law, in the sense of a body of rational principles, and the original
rationale of the chancellor’s bill jurisdiction was forgotten.

’8 Replication of a Serjaunte at the Lawe [c. 1530] in F. Hargrave (Ed) Law Tracts (1787), pp. 321-331.
” From Responsio ad Lutherum, as translated in 94 SS81.
20 W. Roper, The Lyfe of Sir Thomas Moore (E.V. Hitchcock edn, 1935), pp. 44-45.
21 Much of the conservatism of the law judges in that era can be explained by the fact that they were personally
liable for rendering judgments contrary to the law if the appellant could so prove on appeal. Indeed, the way
appeals were normally taken in those days was to sue the trial judge. [Eds.]
252 JUSTICE AND THE LEGAL SYSTEM

Edwards v. Allouez Mining Co.

38 Mich. 46
Supreme Court of Michigan
January 9, 1878

COOLEY, J. This is an injunction bill, and seeks, namely, an injunction.

the facts are very simple. Defendant at a cost of An injunction is not a process to be lightly
some sixty thousand dollars erected a stamp mill ordered in any case. Where the effect will be to
on the banks of Hill creek in the year 1874, and present to the owners of a valuable mill the alter¬
has since been operating it for copper mining pur¬
native either to purchase complainant’s lands at
poses. As a result of its operations large quantities his own price or to sacrifice their property, any
of sand are carried down by the waters of the court having the power to order it ought very
stream and deposited on the bottom lands below. carefully to scrutinize the case and make sure that
The evidence leads to the belief that it would be
equity requires it. In theory its purpose is to pre¬
impossible to carry on the mining operations of vent irreparable mischief; it stays an evil the con¬
the defendant with profit unless this is permitted. sequences of which could not adequately be
The year following the erection of defendant’s compensated if it were suffered to go on. [Citing
mill, complainant purchased a piece of land cases] “There is no power,’’ says Mr. Justice Bald¬
through which the creek runs a short distance win, “the exercise of which is more delicate, which
below the mill, and upon which the mill as oper¬ requires greater caution, deliberation and sound
ated was depositing sand. The land was not pur¬ discretion, or is more dangerous in a doubtful case
chased for use or occupation, but as a matter of than the issuing of an injunction. It is the strong
speculation, and apparently under an expectation arm of equity, that never ought to be extended
of being able to force defendant to buy it at a unless to cases of great injury, where courts of
large advance on the purchase price. It was offered law cannot afford an adequate or commensurate
to defendant soon after the purchase, and though remedy in damages.’’ Bonaparte v. Camden etc.,
no price was named, the valuation which has been R. R. Co., Baldw. , 218. All the cases referred to
put upon it by complainant and his witnesses is show that the court looks beyond the actual injury
from three to five times what it cost him, and this to contemplate the consequences, and however
perhaps gives some indication what his expecta¬ palpable may be the wrong, it will still balance
tions were. The real value of the land except as the inconveniences of awarding or denying the
a convenience in the business of defendant would writ, and adjudge as these may incline the judicial
seem to have been small. When defendant mind. [Citing cases] Even in the case of a palpable
declined to purchase, this bill was filed. The violation of a public right to the annoyance of an
prayer is that defendant be restrained from run¬ individual, he must show the equity which requires
ning or depositing its stamp sand on complain¬ this summary interference as the only adequate
means of obtaining justice.
ant’s land, and from polluting the waters of the
stream by its operations. This is a short statement What is the irreparable injury which is done
of so much of the case as is material to what or threatened in this case? We can see very plainly
follows. The circuit judge refused the injunction what it is in the case of many nuisances, and the
prayed for, but ordered a reference to a jury for equity of this particular remedy is then very man¬
an assessment of damages. ifest. If one man creates intolerable smells near
There is no doubt that the operations of his neighbor’s homestead, or by excavations
defendant, whether they inflict any serious injury threatens to undermine his house, or cuts off his
on complainant or not, amount in effect to an access to the street by buildings or ditches, or in
appropriation of that portion of his property upon any other way destroys the comfortable, peaceful
which sand is being deposited. [Citing cases] It and quiet occupation of his homestead, he injures
follows and is beyond question that complainant him irrevocably. No man holds the comfort of his
sustains a legal injury for which he is entitled to home for sale, and no man is willing to accept in
suitable redress. The only question on this record lieu of it an award of damages. If equity could
is, whether he is entitled to the special redress he not enjoin such a nuisance the writ ought to be
 Individualized Justice 253

dispensed with altogether, and the doctrine of

he has a corner in real estate, there is no greater
irreparable mischief might be dismissed as mean¬
reason why he should have the assistance of an
ingless. A nuisance which affects one in his busi¬
injunction to aid his schemes than there would be
ness is less in degree, but it may still be
if on the produce exchange he had effected a cor¬
irreparable, because it may break up the business,
ner in grain. Without the writ in either case he
destroy its good will and inflict damages which
may be the sufferer, but he suiters nothing tor
are incapable of measurement because the ele¬
which damages cannot compensate him. The ele¬
ments of reasonable certainty are not to be
ments of irreparable injury are entirely wanting
obtained for their computation. Even in the case to his case.
of unoccupied land a nuisance may threaten irrep¬ Our conclusion is that the circuit court gave
arable injury, where it is devoted in its purchase the complainant all he was entitled to when the
to some special use, or where the person causing case was sent to a jury. The decree must therefore
the nuisance is irresponsible, and in some other be affirmed with costs.
cases which need not here be specially mentioned.
The land injured in this case was bought by GRAVES, J. 1 concur in affirming the
decree.
the complainant with a preconceived purpose to
force a sale of it upon the defendant. He did not CAMPBELL, C.J. It appears without doubt
want it for a homestead or for business property, in this case that defendants, without color or claim
but for the money he could compel the defendant of right, are keeping up a continuous series of
to pay for it. It may be said that no one is con¬ invasions upon complainant’s freehold by using a
cerned with the motives of another in making a running stream as a means of transporting sand
lawful purchase, or in doing any other lawful act; upon his bottom land in quantities sufficient to
and this is true as a rule, but it is not true uni¬ bury it. The same course of conduct defiles and
versally. Wherever one keeps within the limits of silts up the stream, rendering it useless to him for
lawful action, he is certainly entitled to the pro¬ any purpose of business or convenience. It is
tection of the law, whether his motives are com¬ equivalent in mischief to taking away or destroy¬
mendable or not; but if he demands more than ing his property in the land and his rights in the
the strict rules of law can give him, his motives water.
may become important. In general it must be
I cannot concur in the doctrine that any one’s
assumed that the rules of the common law will
rights of this kind are subject to judicial discre¬
give adequate redress for any injury; and when tion. The rights to equitable relief, where that is
the litigant avers that under the circumstances of the only adequate remedy, are as absolute as to
his particular case they do not, and that therefore legal relief. The one remedy is no more sacred
the gracious ear of equity should incline to hear than the other, and no more capable of lawful
his complaint, it may not be amiss to inquire how denial. If the defendants were to take possession
he came to be placed in such circumstances. If a of the land in question by putting a tenant upon
man invites an injury, he may still have his redress it, no power would exist any where to deny com¬
in the courts of law, but his prayer for the special plainant his possessory remedy. Where the same
interposition of equity on the ground that what sort of wrong is done by indirect assumption of
he invited and expected was about irreparably to possession so that all the advantages of actual
injure, would not be likely to trouble the judicial possession are enjoyed by the wrongdoer without
conscience very much if it were wholly ignored. going in person upon the soil, there is no reason
The land having been bought to make money for denying the only remedy which can secure to
from by sale, a legal award of damages for an complainant the future enjoyment of his own
injury to it, is in furtherance of the purpose of estate, which would not as justly authorize the
the purchase, and therefore a suitable and a just refusal of a possessory remedy in the other case.
redress. Defendant is not alleged to be irrespon¬ And no remedy at law is adequate for such a
sible, and a jury it is supposed will award all that grievance as is here complained of, because no
is reasonable. If complainant wants more than is legal remedy can secure complainant the use of
reasonable, he has a right to obtain it under the his own property.
rules of law, but he cannot demand the aid of It is not claimed, and there is certainly no
equity in a speculation. If in speculative language ground for claiming, that there is any equitable
254 JUSTICE AND THE LEGAL SYSTEM

estoppel. Defendants have never acted on any done no wrong himself. The property of one man
belief that they had a right to do what they are is as much entitled to protection as that of
doing. They have always known they were wrong¬ another — not because he brought it or intends to
doers, and have simply presumed on the patience use it without selfish motives, but because it is
of their neighbors, and neglected to purchase what property. Any attempt to discriminate would, in
they could originally have purchased if they had my opinion, leave private interests subject to a
chosen. Neither does the proof show any very discretion which no man could calculate upon,
serious difficulty in the way of avoiding the mis¬ and make the judicial conscience the only arbiter
chief, although I do not regard this as at all essen¬ of every one’s rights. Some courts may have acted
tial. on this notion, but it seems to me that such prec¬
It is not denied by complainant that he pur¬ edents are unjust, and are not consistent with law
chased the land for speculative purposes. As every or equity as we have received them under our
one has a right to do this if he chooses, it cannot constitutional guaranties of protection to person
and property.
in any way lessen his claims to protection. It
I think the court below should have granted
would be, I think, a very dangerous principle to
a perpetual injunction as prayed.
hold that a civil wrong can be lessened by the
motives of the party injured, so long as he has MARSTON, J., did not sit in this case.

Notes and Questions

1. Consider whether Judge Cooley would have issued an injunction in the following
cases;

(a) Plaintiff owned the land for ten years prior to erection of the mill.
(b) Plaintiff purchased the land speculatively after erection of the mill, but did not
bring suit until after he had owned the land for ten years.
(c) Plaintiff purchased the land speculatively after erection of the mill, but then decides
to build a vacation home on the land.
(d) Plaintiff, a city stockbroker, inherited the land one year after erection of the mill
from his parent who had homesteaded the site and who committed suicide as a
consequence of the degradation of the property.
(e) Plaintiff had purchased the land prior to erection of the mill in the mistaken belief
that defendant would need to purchase the land in order to have sufficient acreage
to erect the mill.

2. Zechariah Chafee, Jr. roundly condemned Allouez in his Thomas M. Cooley lectures

at Michigan Law School:”

George Washington and John Marshall made a good deal of money out of
land speculation. Why then is it wicked? If there be a proper defense in this case,
it is not the clean hands maxim at all. What both opinions were groping for was
some solution of the problem of balance of convenience. There is considerable

authority that if copper mining was much more valuable to the region than farming
bottom lands, then the mine owner was entitled to a sort of informal eminent

22 z. Chafee, Jr., Some Problem.s of Equity 96-97 (1950).

 Individualized Justice 255

domain through which he could use the downstream land for his debris on paying
a reasonable lump sum compensation. On
this theory, an injunction would be
denied, not only to [Edwards], but also to X, his grantor who owned the bottom
lands when the nuisance began.
However, the Allouez decision seems to rest on the proposition that X can
enjoin the mining company, but cannot transfer this right with the land. Judge
Cooley does not see that the long-time effect of such a proposition is to punish
any person in the position of X. Although he is the clean-handed victim of a
deliberate tort, he will have a great deal of difficulty in selling his land. Who
wants to pay money for a pile of constantly increasing debris? So the tort-victim
is forced to win an injunction suit before he sells, in order to get any sort of price.
He may be very reluctant to engage in such an expensive litigation. Suppose he
finds a buyer who is willing to take over this burden along with the land. The
possibility of such a deal is cut off by the Allouez doctrine.

3. A great part of Chancellor Chafee’s lectures was devoted to debunking the “clean
hands” maxim, the very maxim Judge Cooley used but did not state in Allouez'.^^

The most amusing maxim of equity is ‘He who comes into Equity must come
with clean hands.’ It has given rise to many interesting cases and poor jokes. The
maxim has been regarded as an especially significant manifestation of the ethical
attitude of equity as contrasted with the common law. Pomeroy, for instance,
argues that the principle involved in this maxim is “merely the expression of one
of the elementary and fundamental conceptions of equity jurisprudence.”^'* Pom¬
eroy’s theory is that chancery has power to force a defendant to comply with the
dictates of conscience as to matters outside the strict rules of law. Correspondingly,
it will not interfere on behalf of a plaintiff whose own conduct in this connection
has been contrary to conscience. In other words, since equity tries to enforce good
faith in defendants, it no less stringently demands the same good faith from
plaintiffs.
Although it is a pity to take this beautiful statue off its lofty pedestal, I
propose to show that the clean hands doctrine does not definitely govern anything,
that it is a rather recent growth, that it ought not to be called a maxim of equity
because it is by no means confined to equity, that its supposed unity is very tenuous
and it is really a bundle of rules relating to quite diverse subjects, that insofar as
it is a principle it is not very helpful but is at times capable of causing great harm.

Test Chancellor Chafee’s assertion against the following case.

23 Id. at 1-2.

2« 2 Pomeroy § 398.
256 JUSTICE AND THE LEGAL SYSTEM

McCune v. Brown

648 S.W.2d 811

Court of Appeals of Arkansas
March 30, 1983

Davidson, Horne, Hollingsworth, Arnold & that the transfer of title to the Winnebago to his
Grobmyer, Little Rock, for appellant. present wife was solely an attempt to keep his
Eichenbaum, Scott, Miller, Crockett, Darr former wife from receiving it in an earlier divorce
& Hawk, P.A. by Frank S. Hamlin and Leonard proceeding. The chancellor further found that the
L. Scott, Little Rock, for appellee. general understanding at the time of the transfer
CLONINGER, Judge. was that it would be transferred back to the hus¬
band at some time subsequent to the divorce.
On August 28, 1981, appellee, W.G. Brown,
On appeal, the Arkansas Court of Appeals
Sr., filed a complaint in equity against the appel¬
lant, Billie Jean McCune, seeking a temporary found that the evidence supported the court’s find¬
restraining order to keep appellant from removing ing that the husband intended no gift of the Win¬
nebago to his present wife. However, the court
any of the contents of a safety deposit box leased
further found that the husband was estopped from
to her at Worthen Bank & Trust Company in Little
asserting any claim to the Winnebago. The court
Rock, Arkansas. The contents of the box con¬
recognized that the transfer was made to preclude
sisted of 650 gold Kruggerands, 13 Mexican pesos
and one double eagle gold piece valued at approx¬ any possible claim by appellee’s former wife. The
court analogized this situation to one in which a
imately $250,000. The gold was placed in appel¬
husband conveys property to his wife in order to
lant’s safety deposit box on December 12, 1978, defraud his creditors. A conveyance made to
at a time when appellee was involved in a divorce
defraud creditors is still good between the parties.
proceeding with his wife. Appellee admitted at
Maupin v. Gaines, 125 Ark. 181, 188 S.W.2d 552
trial that he had transferred the gold to appellant,
(1916). He does not come into court with clean
his daughter, in an attempt to defeat his ex-wife’s hands. See McClure v. McClure, 220 Ark. 312,
rights to the property. 247 S.W.2d 466 (1952).
The chancellor held that appellee had proved
We agree with appellant that the facts of this
his right to possession of the gold and therefore
case are very similar to the facts in Melvin, supra.
was entitled to it pursuant to Ark. Stats. Ann. §
However, we find that the Melvin case is in conflict
34-2101 et seq. (Repl.1962 and Supp.1981). The with previous cases decided by the Arkansas
chancellor found that appellee had not made a
Supreme Court in the application of the clean
completed gift of the gold and further held that hands maxim. In Batesville Truck Line, Inc. v.
appellee was not estopped from asserting his claim Martin, 219 Ark. 603, 243 S.W.2d 729 (1951), the
to the gold. From the decision of the chancellor, Arkansas Supreme Court held that the clean
appellant now brings this appeal, alleging three hands doctrine must, in order to defeat a suit,
points for reversal. have an immediate and necessary relation to the
Appellant’s first point for reversal is that the equity which the complainant seeks to enforce
court erred in not finding that appellee was
against the defendant. Further, the party com¬
estopped from asserting any claim to the gold. As plaining of the wrong must have been injured
appellant points out, this case is very similar to thereby to justify the application of the principle
a recent case decided by this court, Melvin v. of unclean hands. The purpose of the maxim is
Melvin, 270 Ark. 522, 606 S.W.2d 90 to secure justice and equity, and not to aid one
(Ark. App. 1980). In Melvin, the chancellor made in an effort to acquire property to which he has
a property division in a divorce proceeding no right.
whereby he awarded the husband a Winnebago In the instant case, we find that there was
motor home. On appeal the wife argued that the evidence to support the chancellor’s decision that
Winnebago was not marital property which the appellee was not estopped from asserting his inter¬
chancellor could divide because it was a gift to est in the gold. We hold that this case is governed
her before marriage. The chancellor had found by the rule in Batesville Truck Line, supra, and
 Individualized Justice 257

to the extent that Melvin v. Melvin, supra, is in his former wife and appellant understood that the
conflict, that case is overruled. In order to justify
gold was to be transferred back to him some time
application of the clean hands maxim, appellant
after the divorce. The findings of a chancellor will
must prove that she was somehow injured thereby.
not be disturbed on appeal unless they are found
Further, a chancellor may balance the equities
between the parties in determining whether or not to be clearly erroneous or against a clear pre¬
to apply the maxim. ponderance of the evidence; and, inasmuch as a
Here, the evidence strongly suggests that preponderance of the evidence depends heavily on
appellant knew why the gold was being transferred the credibility of the witnesses, the appellate court
to her. Although she testified that appellee had defers to the superior position of the chancellor
made an unconditional gift of the gold to her, the
in this regard. . . . We find no error in the chan¬
chancellor chose to believe appellee and his wit¬ cellor’s ruling on this issue.
nesses who testified that the gold was transferred
to appellant for the purpose of keeping it from

Questions

1. The case you have just read is an “equity” case because the plaintiff has asked for
a temporary restraining order. Since the TRO would impose a direct duty upon the defendant

personally, it is traditionally part of the “equity” side of the Arkansas courts even though
those courts, like the courts in most states, have merged equity and law.
Since the plaintiff defrauded his former wife by transferring the Kruggerands to his
daughter and making it appear that his daughter had title to them, why should an equity

court now intercede on his behalf in his lawsuit against his daughter? Isn’t the court
“rewarding” fraud in this case?
2. If your answer to the latter question is “yes,” is this a case of predominantly male
judges awarding a suspect decision to a male who has previously defrauded his wife and
now is trying to get the Kruggerands back from his daughter? Is this rampant male chau¬
vinism at work?

3. What does justice have to say about this case? Suppose that the plaintiff’s former
wife reads in the newspapers or in the court reports that Brown has admitted that he
transferred the gold in order to defeat her rights to the property? She will see — by the very
report of the case (a public document) that her former husband has admitted defrauding
her! Since this is, presumably, her first notice of the fraud, the statute of limitations will
only begin running now.
Suppose that the former wife now wants to recover her property interest in the Krug¬
gerands. In the case you have just read, which is a case by her former husband against the
daughter, whom does the former wife want to win the case? Whom will she be rooting for?
Her former husband? Or the daughter?
Does your answer to these questions change your opinion about the justice of the
court’s decision?
JUSTICE AND THE LEGAL SYSTEM

6.3 Doing justice under the merger of law and equity

A Century of the New Equity^®

Leonard J. Emmerglick

Commencing in 1845 the states, led by Texas, began to abandon their separate equity
courts.
The principal human want for which people turn to the courts in a free society is
justice shaped and fashioned to the facts of the individual case — individualized justice. As
we abandoned separate equity courts, designed to provide such justice, administrative tri¬
bunals were created to meet the need, and they have flourished. Attached to the executive
department of government, the administrative tribunal derives from our system of consti¬
tutional checks and balances a natural opposition to the judicial branch. Similarly, the
English Court of Chancery grew up in opposition to courts of law. The individual turned
to the Chancellor for protection against the law. The separate and independent Court of
Chancery stood in opposition to strict law, and for that reason was able to individualize
justice. The object of administrative adjudication, like that of equity, is to give effect to
the peculiar, special circumstances in each case.
Separate equity courts were given up because equity had been made into a body of
rigid doctrines which were applied quite as mechanically as the strict common law. Equity
had become a sterile system and showed a progressive decadence as an agency able to
individualize justice. “The introduction of the common-law theory of binding precedents
and the resulting case-law equity . . . that made equity a system must in the end prove fatal
to it. In the very act of becoming a system it becomes legalized, and in becoming merely

a competing system of law insures its ultimate downfall.”^* Since equity had become “legal¬
ized,” it was assumed that the usefulness of the separate court was exhausted. But the
increasing resort to administrative adjudication which has followed merger is living proof
that the task of the separate equity court had not been completed. There was needed, not
less, but more freedom to exercise judicial discretion. The human need for justice is not
met by providing certainty and predictability. It requires also the ameliorating exercise of
discretion. When the courts deem.phasize the importance of judicial discretion other agencies
are devised to provide something equivalent to it. In the twelfth and thirteenth centuries
the common-law courts administered equity. These courts were closely identified with the
King, and thus their action was marked by the exercise of broad discretion. By the fourteenth
century the common-law courts gained an establishment quite independent of the King.
The discretionary character of their justice had largely evaporated. And so a new agency
was created to meet the insistent need for individualized justice grounded in the exercise of
discretion. That agency, of course, was the Court of Chancery. It too permitted discretion
to evaporate, but this time the attempted correction took the form of reverting to the method

25 23 Tex. L. Rev. 244 (1945), reprinted in Selected Essays on Equity 53-55 (E. Re ed. 1955).

26 Pound, The Decadence of Equity (1905), 5 Col. L. Rev. 20, 25.

 Individualized Justice 259

of the twelfth century.

With each merger of law and equity in the Anglo-American legal systems there ceased
to be a court which stood in opposition to strict law. In cases where individualized justice
could properly be attempted the individual had to go to court which stood for both strict
law and opposition to it. A court which was obliged to preserve and cultivate the common
law was to determine upon what principles the common law should be opposed and defeated.
The movement for merger of equity into law discounted this in its preoccupation with the
belief that law and equity do not conflict, that equity is nothing more than a body of more
enlightened principles of conduct which could be smoothly mortised into the common law.
The doctrine of “no conflict” was accepted by Maitland, Langdell, and Ames. That there
is very real conflict between law and equity is more generally recognized today. A judgment
of a common-law court creates rights in the plaintiff. A decree in equity, operating in
personam, imposes duties upon the defendant. From this fundamental difference, as well
as from equity’s principles, drawn from morals and applied in opposition to common-law
rules, conflict results. Equity compels the defendant to forego the exercise of legal rights
where fairness, good faith and conscience dictate that they should not be enforced.

For an example of the price we pay for losing equity, see Jacobson, The Equitable Administration of Long-
Term Relations: An Appreciation of Judge Clark’s Opinion in Parev Products Judge Charles Edward Clark
(P. Petruck ed. 1991). Jacobson criticizes recent contract theorists for using implied terms and tort concepts to
fashion rigid, unimaginative remedies for disputes betw'een parties to long-term relations. Judge Clark, the father
of merger in federal courts, approached long-term relations as a chancellor administers a trust, deploying novel
equitable remedies. [Eds.]

Goldsmith v. Goldsmith

145 N.Y. 313

Court of Appeals of the State of New York
March, 1895

FINCH, J. The findings in this case show a extent by the labor of Annie, the eldest daughter,
situation which permits the application of an equi¬ upon whom the household management devolved
table remedy. They establish that Mrs. Goldsmith, after the disability of the mother. The means of
while the owner and in possession of a house and the family were narrow and limited. The home
lot known as the Myrtle avenue property, met with which they occupied was very essential to their
an accident which incapacitated her for its further comfort and support, but even that was incum¬
care and management, and induced her to commit bered by a mortgage, the annual interest of which
it to her son, the defendant, Leopold. That son was a charge upon their resources. In this state
was of age but unmarried and lived with the fam¬ of affairs the findings show that the mother con¬
ily, which further consisted of four children, three veyed the house and lot to her son, Leopold, upon
daughters and one son, all of them, with perhaps a promise on his part to hold it for the benefit
a single exception, minors, and two of them under of the other four children in common with him¬
ten years of age. The Myrtle avenue property fur¬ self, and give to them their shares in it. He paid
nished a home for the family which was supported no consideration for it beyond the promise thus
partly by the rental of a portion of the house, made. It was a further part of the arrangement
partly by the husband and father, and to some that he should have all the accruing rents, but
260 JUSTICE AND THE LEGAL SYSTEM

should pay the interest on the mortgage and the reproach to equity if it proved unable to redress
taxes on the property, and was to have his board such a wrong.
in the family without charge. In pursuance of this It may be granted that no express trust was
arrangement the deed was executed and delivered,
created, and that the judgment cannot be sus¬
and Annie herself took it to the clerk’s office for tained on that ground, but we think the case is
record. It is quite evident that this was an arrange¬ one in which equity will raise out of the situation,
ment founded upon the relation of mother and
from the grouped and aggregated facts, an implied
son, and brothers and sisters, involving the trust
trust to prevent and redress a fraud, and which
and confidence growing out of that relation, and
trust will be enforced. The general rule was
intended as a settlement of the family affairs. It
declared, in IVooc/ v. Rate, (96 N.Y. 425, 426),
furnished a home for all in which they were to
have a common right, and which was to be for to be, that when a person, through the influence
their joint benefit. The deed was made in Feb¬ of a confidential relation, acquires title to prop¬
ruary, 1887. The mother died in March of the next erty or obtains an advantage which he cannot
year. The plan originally adopted was carried out conscientiously retain, the court, to prevent the
during her life and for some considerable time abuse of confidence, will grant relief. It was added
after her death. The daughters furnished Leopold that, while the fraud must be something more than
with his board without compensation or charge, the mere breach of a verbal agreement, yet, where
as was arranged, and occasionally paid out small the transaction is one between parent and child,
sums for ordinary repairs of the house. A time and involves the greatest confidence on one side
came when Leopold sold the Myrtle avenue prop¬ and the greatest influence on the other, the case
erty, and with a portion of the proceeds bought is one side and the greatest influence on the other,
a house and lot on De Kalb avenue. There is
the case is one in which equity may properly inter¬
evidence that on this occasion he was asked to
take the deed in the name of all the children inter¬ vene. One of the findings in this case is “that at
the time said deed was delivered the defendant
ested, but objected on the ground that it would
understood that his mother reposed confidence in
be troublesome and inconvenient, and promised
him, and with that understanding accepted the
to execute a separate paper acknowledging and
securing their rights in the property. Soon after conveyance and the confidence of his mother.”
he totally repudiated the agreement, and claimed There is no room to doubt the truth of that find¬
to be the sole and absolute owner of the property, ing. There was not only involved the relation of
and now defends against the children, insisting mother and son, but that of brothers and sisters,
that the agreement, if made, was void for uncer¬ for whose benefit the agreement was made. The
tainty, and because it rested solely in parol. absence of a formal writing grew out of that very
There was enough of evidence to warrant the confidence and trust, and was occasioned by it,
finding that Leopold at the time of the conveyance as was also the subsequent performance by the
promised his mother that he would hold the prop¬ children of the condition to furnish board without
erty in trust for the plaintiffs herein. What he said pay. Upon the whole transaction, therefore,
on that occasion was expressed in somewhat dif¬ including the confidential relation of the parties
ferent terms by different witnesses, but the sub¬ and its nature as a family arrangement very much
stance of all of it concurred in the promise that
beyond a mere business relation, we think it was
he would hold the legal title for the benefit of the
competent for a court of equity to impress upon
plaintiffs. That agreement was reflected in the
the property and its proceeds an implied trust for
action of both parties for some years after it was
the benefit of the children.
made, and induced the plaintiffs to do what oth¬ We think, therefore, that there was no error
erwise they would not have done, and furnish
in awarding the relief, and that the judgment and
Leopold his board without charge. The conduct
of the latter in now denying the rights of the order appealed from should be affirmed, with
plaintiffs operates as a manifest fraud upon them costs.
All concur.
and upon the purpose of the dead mother in seek¬
ing to provide for her children. It would be a Judgment affirmed.
 Individualized Justice 261

Questions
1. Would the case have been decided differently if the arrangement had not included
free board for Leopold from his sisters? What if the sisters stopped giving Leopold free
board as soon as their mother died?

2. After the sisters and brother won their share of Leopold’s property by virtue of the
court’s decision, must the sisters continue to provide free board to Leopold? Must Leopold
continue to pay the mortgage and taxes? Must all the siblings live together even if they no
longer can stand each other? Do these questions suggest the intricacy of the original context
of the mother’s conveyance of the property to Leopold? When that context no longer exists,
is it appropriate for a court to make rulings that tend to presume the continuation of that
context? Should the law treat family relationships in a somewhat special way — for example,
not the way the law would treat a corporation or partnership?
3. It appears that Mrs. Goldsmith made a deliberate decision not to seek the help of
a lawyer when she made her arrangement with Leopold. Does this suggest that she might
not have wanted to hold Leopold strictly to the arrangement if future circumstances changed?
Or does it suggest simply that she was ignorant of the legal consequences of her plans?
3. We are told that, historically, equity courts came into the picture in the Fourteenth
Century to correct the legalistic excesses of the law courts. But is it not something quite
different to argue that equity courts should correct the legal mistakes of people who are
ignorant of the law?
5. Consider the purpose of the Statute of Frauds: to discourage fraudulent claims based
on conflicting allegations of the existnece of, and provisions of, oral contracts or trusts.
Does the Goldsmith decision tend to undermine the Statute of Frauds? If so, where is the

true “equity” here? Is it equitable to enforce the Statute of Frauds, or to undermine it?
6. After reading about the Separation Thesis one might have gotten the impression that
equity was the justice side of the legal system, and law the law side. Do these questions
suggest that law and justice cannot be artifically separated by a procedural device, such as
the fourteenth century innovation of separating equity courts from law courts? Do law and
equity simply present different versions of justice? Does the merger of law and equity change
the picture, or does it simply reintroduce an artifical distinction? Is it ever possible to
separate law and justice?

Sharp V. Kosmalski
40 N.Y.2d 119
Court of Appeals of the State of New York
June 15, 1976

GABRIELLI, J. Plaintiff commenced this the retention of the property and subsequent ejec-
action to impose a constructive trust upon prop- tion of the plaintiff therefrom was in violation of
erty transferred to defendant on the ground that relationship of trust and confidence and consti-
262 JUSTICE AND THE LEGAL SYSTEM

tuted unjust enrichment. The Trial Judge dis¬

ed], § 44.2, p 337; 4 Pomeroy’s Equity Jurispru¬
missed plaintiff’s complaint and his decision was dence [5th ed], § 1053, p 119). In the development
affirmed without opinion by the Appellate Divi¬ of the doctrine of constructive trust as a remedy
sion.
available to courts of equity, the following four
Upon the death of his wife of 32 years, plain¬ requirements were posited: (1) a confidential or
tiff, a 56-year-old dairy farmer whose education fiduciary relation, (2) a promise, (3) a transfer in
did not go beyond the eighth grade, developed a reliance thereon and (4) unjust enrichment. [Cit¬
very close relationship with defendant, a school ing cases]
teacher and a woman 16 years his Junior. Defen¬ Most frequently, it is the existence of a con¬
dant assisted plaintiff in disposing of his wife’s fidential relationship which triggers the equitable
belongings, performed certain domestic tasks for considerations leading to the imposition of a con¬
him such as ironing his shirts and was a frequent structive trust. Although no marital or other fam¬
companion of the plaintiff. Plaintiff came to ily relationship is present in this case, such is not
depend upon defendant’s companionship and, essential for the existence of a confidential relation
eventually, declared his love for her, proposing (see Muller v Sobol, 211 App Div 884 [meretri¬
marriage to her. Notwithstanding her refusal of cious relationship]; Bogert, op. cit., § 482, pp
his proposal of marriage, defendant continued her 136-147; 1 Scott, op. cit., p 339). The record in
association with plaintiff and permitted him to this case clearly indicates that a relationship of
shower her with many gifts, fanning his hope that trust and confidence did exist between the parties
he could induce defendant to alter her decision and, hence, the defendant must be charged with
concerning his marriage proposal. Defendant was an obligation not to abuse the trust and confidence
given access to plaintiff’s bank account, from placed in her by the plaintiff. The disparity in
which it is not denied that she withdrew substan¬ education between the plaintiff and defendant
tial amounts of money. Eventually, plaintiff made highlights the degree of dependence of the plain¬
a will naming defendant as his sole beneficiary tiff upon the trust and honor of the defendant.
and executed a deed naming her a joint owner of
Unquestionably, there is a transfer of prop¬
his farm. The record reveals that numerous alter¬
erty here, but the Trial Judge found that the trans¬
ations in the way of modernization were made to
fer was made “without a promise or
plaintiff’s farmhouse in alleged furtherance of understanding of any kind.” Even without an
“domestic plans” made by plaintiff and defen¬ express promise, however, courts of equity have
dant.
imposed a constructive trust upon property trans¬
In September, 1971, while the renovations ferred in reliance upon a confidential relationship.
were still in progress, plaintiff transferred his In such a situation, a promise may be implied or
remaining joint interest to defendant. At the time inferred from the very transaction itself. As Judge
of the conveyance, a farm liability policy was
CARDOZO so eloquently observed: “Though a
issued to plaintiff naming defendant and her
promise in words was lacking, the whole trans¬
daughter as additional insureds. Furthermore, the
action, it might be found, was ‘instinct with an
insurance agent was requested by plaintiff, in the
obligation’ imperfectly expressed (Wood v. Duff-
presence of defendant, to change the policy to
Gordon, 222 N.Y. 88, 91)” (Sinclair v Purdy, 235
read “J. Rodney Sharp, life tenant. Jean C. Kos- NY 245, 254 (1923) [Citing other cases]. In decid¬
malski, owner.” In February, 1973, the liaison ing that a formal writing or express promise was
between the parties was abruptly severed as defen¬ not essential to the application of the doctrine of
dant ordered plaintiff to move out of his home constuctive trust. Judge CARDOZO further
and vacate the farm. Defendant took possession observed in language that is most fitting in the
of the home, the farm and all the equipment instant case:
thereon, leaving plaintiff with assets of $300.
Generally, a constructive trust may be Here was a man transferring to his sister the

imposed “[w]hen property has been acquired in only property he had in the world. ... He was
such circumstances that the holder of the legal doing this, as she admits, in reliance upon
her honor. Even if we were to accept her
title may not in good conscience retain the ben¬
statement that there was no distinct premise
eficial interest” (Beatty v Guggenheim Explora¬
tion Co., 225 NY 380, 386; 1 Scott, Trusts [3d to hold for his benefit, the exaction of such
 Individualized Justice 263

a promise, in view of the relation, might well the defendant. This must be determined from the
have seemed to be superfluous.” (Sinclair v. circumstances of the transfer since there is no
Purdy, supra, p. 254).
express promise concerning plaintiff’s continued
More recently, in Farano v Slephanelli (7 use of the land. Therefore, the case should be
AD2d 420, 425), Chief Judge BREITEL, then remitted to the Appellate Division for a review of
the facts. In so doing 1 would emphasize that the
writing for the Appellate Division, First Depart¬
ment, followed the Sinclair approach stating that conveyance herein should be interpreted “not lit¬
erally or irrespective of its setting, but sensibly
the decision to invoke the remedy of constructive
trust “need not be determined exclusively by and broadly with all its human implications” (Sin¬
clair V Purdy, 235 NY 245, 254, supra). This case
whether or not the defendant daughters expressed
seems to present the classic example of a situation
in so many words a promise to reconvey the prop¬
where equity should intervene to scrutinize a
erties to the father if he should ask”. Indeed, in transaction pregnant with opportunity for abuse
the case before us, it is inconceivable that plaintiff
and unfairness. It was for just this type of case
would convey all of his interest in property which
was not only his abode but the very means of his that there evolved equitable principles and reme¬
dies to prevent injustices. Equity still lives. To
livelihood without at least tacit consent upon the
part of the defendant that she would permit him suffer the hands of equity to be bound by mis¬
to continue to live on and operate the farm. I named “findings of fact” which are actually con¬
clusions of law and legal inferences drawn from
would therefore reject the Trial Judge’s conclu¬ the facts is to ignore and render impotent the rich
sion, erroneously termed a finding of fact, that
and vital impact of equity on the common law
no agreement or limitation may, as a matter of
and, perforce, permit injustice. Universality of
law, be implied from the circumstances surround¬ law requires equity.
ing the transfer of plaintiff’s farm.
The salutary purpose of the constructive Accordingly, the order of the Appellate Divi¬
sion should be reversed and the case remitted to
trust remedy is to prevent unjust enrichment and
that court for a review of the facts, or, if it be
it is to this requirement that 1 now turn. The Trial
so advised, in its discretion, to order a new trial
Judge in his findings of fact, concluded that the in the interests of justice.
transfer did not constitute unjust enrichment. In
Chief Judge BREITEL and Judges WACH-
this instance also, a legal conclusion was mistak¬ TLER and FUCHSBERG concur with Judge
enly labeled a finding of fact. A person may be
GABRIELLl; Judges JASEN, JONES and
deemed to be unjustly enriched if he (or she) has
COOKE dissent and vote to affirm in the follow¬
received a benefit, the retention of which would
ing memorandum: In view of the affirmed find¬
be unjust (Restatement, Restitution, § 1, Com¬ ings of fact that the appellant knowingly and
ment a). A conclusion that one has been unjustly
voluntarily conveyed his property without agree¬
enriched is essentially a legal inference drawn ment or condition of any kind, express or implied,
from the circumstances surrounding the transfer and with full knowledge of their legal effect, it
of property and the relationship of the parties. It cannot be said that a constructive trust should be
is a conclusion reached through the application of imposed as a matter of law. Although we are
principles of equity. Having determined that the sympathetic to the appellant who has been doubly
relationship between plaintiff and defendant in aggrieved by the loss of his wife and property, we
this case is of such a nature as to invoke consid¬ are limited to considerations of questions of law
eration of the equitable remedy of constructive and, in light of the factual findings, would affirm.
trust, it remains to be determined whether defen¬ Order reversed and the case remitted to the
dant’s conduct following the transfer of plaintiff’s Appellate Division, Fourth Department, for fur¬
farm was in violation of that relationship and, ther proceedings in accordance with the opinion
consequently, resulted in the unjust enrichment of herein, with costs to abide the event.
264 JUSTICE AND THE LEGAL SYSTEM

Questions

1. Isn’t the notion of “constructive trust” simply a form of words that achieves a result
the court believes is required by the justice of the situation? If so, what is the justice of
the situation?

2. Do we need the notion of “constructive trust” to resolve this case? Might not the
court have made more of the insurance provision that read “J. Rodney Sharp, life tenant,”
as a contemporaneous written reservation to the deed that was agreed to by both sides?
3. Is this a case of an uneducated farmer who became besotted with a shrewd school
teacher who was only out for money? He executed a deed conveying his farm to her, and
a year and a half later, she ordered him to move out of his home and vacate the farm. Is

the court correct in concluding that “it is inconceivable that plaintiff would convey all of
his interest in property which was not only his abode but the very means of his livelihood
without at least tacit consent upon the part of defendant that she would permit him to
continue to live on and operate the farm”?
4. Are there any facts that you can imagine that would change the picture dramatically,
that could have gone unstated by the court? If you were attorney for the school teacher,
what kinds of facts would you look for? Consider the following categories:

(a) Your client may have contributed domestic services to the farmer that, in the
aggregate, were worth the entire value of the farm;
(b) The farmer may have beaten or otherwise physically abused your client;
(c) The farmer was a self-made millionaire who knew exactly what he was doing
despite the fact that he had only a grade-school education;
(d) Your client refused the farmer’s offer of marriage clearly and distinctly, and
never encouraged him in the slightest about the prospect of marriage.

Of course, we are only imagining possible facts. But maybe the attorney for the school
teacher spent all of his or her time researching “constructive trust” doctrines and paid no
attention to facts that could have turned the situation around for the school teacher. We
don’t know what actually happened. But the POINT is that many cases— maybe most cases,
maybe all cases— can be won on the facts. The attorney who fails to investigate the facts
thoroughly is not doing “justice” to his or her client, and can hardly expect to receive
“justice” from the court.
5. Or, suppose there are no mitigating facts in favor of the school teacher. Suppose
that the court’s opinion fairly summarizes all the relevant facts in the situation (admittedly,
an unlikely possibility). What then? What argument can the school teacher use?
Can she show that the court’s approach is hopelessly paternalistic! The farmer is, after
all, an adult of 56 years of age. Why doesn’t the court simply give effect to the legal
transactions entered into by the farmer, without second-guessing them? Suppose the farmer
were to wake up one morning from a dream where God appeared and told him to deed
his entire farm to the Seventh Day Adventists, retaining only $300 for himself, and then
travel from town to town preaching salvation to sinners. If the farmer were to deed his
entire farm to the Seventh Day Adventists, would a subsequent court refuse to validate the
 Individualized Justice 265

deed? Most likely, any court would say that the farmer is free to do with his property as
he pleases — indeed, that is almost the definition of private property. So why, it a transfer
without consideration to a religious or charitable organization is valid, should the court
disallow a transfer to a person like the school teacher who has in fact performed valuable
domestic services for the farmer?

Do you like this “paternalistic” characterization? Would you say that a court never
should be paternalistic? Would you say that a court should never protect a person from
the legal consequences that he or she intended?

Simonds v. Simonds

45 N.Y.2d 233
Court of Appeals of the State of New York
July 11, 1978
Chief Judge BREITEL. transferred to the new policies. Since the proceeds
of the substituted policies have been paid to dece¬
Plaintiff Mary Simonds, decedent’s first
wife, seeks to impress a constructive trust on pro¬ dent’s second wife, whose interest in the policies

ceeds of insurance policies on decedent’s life. The is subordinate to plaintiff’s, a constructive trust
proceeds had been paid to the named benefici¬ may be imposed.
On March 9, 1960, decedent Frederick
aries, defendants Reva Simonds, decedent’s sec¬ Simonds and his wife of 14 years, plaintiff Mary
ond wife, and their daughter Gayle. Plaintiff,
however, asserts as superior an equitable interest Simonds, entered into a separation agreement
which, on March 31, 1960, was incorporated into
arising out of a provision in her separation agree¬
ment with decedent. Special Term granted partial an Illinois divorce decree granted to plaintiff on
summary judgment to plaintiff and impressed a grounds of desertion. The agreement provided,
constructive trust to the extent of $7,000 plus somewhat inartfully: “The husband agrees that he
interest against proceeds of a policy naming the will keep all of the policies of Insurance now in
full force and effect on his life. Said policies now
second wife as beneficiary, and the Appellate Divi¬
being in the sum of $21,000.00 and the Husband
sion affirmed. Defendant Reva Simonds, the sec¬
ond wife, appeals. further agrees that the Wife shall be the benefi¬
The separation agreement required the hus¬ ciary of said policies in an amount not less than
band to maintain in effect, with the wife as ben¬ $7,000.00 and the Husband further agrees that he
eficiary to the extent of $7,000, existing life shall pay any and all premiums necessary to main¬
insurance policies or, if the policies were to be tain such policies of Insurance and if for any
canceled or to lapse, insurance policies of equal reason any of them now existing the policies shall
value. The issue is whether that provision entitles be cancelled or be caused to lapse. He shall pro¬
the first wife to impress a constructive trust on cure additional insurance in an amount equal to
proceeds of insurance policies subsequently the face value of the policies having been cancelled

issued, despite the husband’s failure to name her or caused to lapse.” Thus, the husband was to
as the beneficiary on any substitute policies once maintain, somehow, at least $7,000 of life insur¬
the original life insurance policies had lapsed. ance for the benefit of his first wife as a named
beneficiary.
There should be an affirmance. The sepa¬
ration agreement vested in the first wife an equi¬ On May 26, 1960, less than two months after
the divorce, decedent husband married defendant
table right in the then existing policies. Decedent’s
substitution of policies could not deprive the first Reva Simonds. Defendant Gayle Simonds was
wife of her equitable interest, which was then born to the couple shortly thereafter.
266 JUSTICE AND THE LEGAL SYSTEM

Sometime after the separation agreement Born out of the extreme rigidity of the early
was signed, the then existing insurance policies common law, equity in its origins drew heavily on
were apparently canceled or permitted to lapse. Roman law, where equitable notions had long been
It does not appear from the record why, how, or accepted (see 1 Pomeroy, Equity Jurisprudence
when this happened, but the policies were not
[5th ed], §§ 2-29. “Its great underlying principles,
extant at the time of decedent husband’s death on which are the constant sources, the never-failing
August 1, 1971. In the interim, however, decedent roots, of its particular rules, are unquestionably
has acquired three other life insurance policies, principles of right, justice, and morality, so far
totaling over $55,000, none of which named plain¬ as the same can become the elements of a positive
tiff as a beneficiary. At his death, decedent had
human jurisprudence” {id., § 67, at p 90). Law
one policy in the amount of $16,138.83 originally without principle is not law; law without justice
issued in 1962 by Metropolitan Life Insurance is of limited value. Since adherence to principles
Company, a second policy for $34,000 issued in of “law” does not invariably produce justice,
1967 through decedent’s employer by Travelers equity is necessary (Aristotle, Nicomachean
Insurance Company, and a third policy for $5,566 Ethics, Book V, ch 9, pp 1019-1020 [McKeon, ed
issued in 1962 by the Equitable Life Assurance Oxford: Clarendon Press, 1941]). Equity arose to
Society of Iowa. The first two policies named soften the impact of legal formalisms; to evolve
Reva Simonds, defendant’s second wife, as ben¬ formalisms narrowing the broad scope of equity
eficiary, and the third policy named their daugh¬ is to defeat its essential purpose.
ter. Hence, at the time of decedent’s death he had Whatever the legal rights between insurer
continuously violated the separation agreement by and insured, the separation agreement vested in
maintaining no life insurance naming the first wife the first wife an equitable interest in the insurance
as a beneficiary. policies then in force. An agreement for sufficient
The first wife, on March 11, 1972, brought consideration, including a separation agreement,
an action against the second wife for conversion to maintain a claimant as a beneficiary of a life
of $7,000 and to recover $13,600 in back alimony insurance policy vests in the claimant an equitable
payments. This action was dismissed, essentially interest in the policies designated. [Citing cases]
on the ground that the causes of action alleged This interest is superior to that of a named ben¬
could properly be brought only against decedent’s eficiary who has given no consideration, notwith¬
estate, not against the second wife. The estate, standing policy provisions permitting the insured
however, is insolvent. to change the designated beneficiary freely.
Subsequently, the first wife brought this This is not to say that an insurance company
action against both the second wife and the
may not rely on the insured’s designation of a
daughter, seeking to impose a constructive trust beneficiary. None of this opinion bears on the
on the insurance proceeds to the extent of $7,000. rights or responsibilities of the insurer in law or
A second cause of action, dealing with alimony equity.
arrears, is not involved on this appeal. Special Obviously, the policies now at issue are not
Term granted partial summary judgment to the the same policies in existence at the time of the
first wife and imposed a constructive trust on the separation agreement. But it has been held that
mere substitution of policies, or even substitution
proceeds in the hands of the second wife. A unan¬
imous Appellate Division affirmed in a thoughtful of insurance companies, does not defeat the equi¬
and scholarly opinion by Mr. Justice Richard D. table interest of one who has given sufficient con¬
Simons. sideration for a promise to be maintained as
There is no question that decedent breached beneficiary under an insurance policy. [Citing
his obligation to maintain life insurance with his cases]. The persistence of the promisee’s equitable
first wife as beneficiary. Consequently, the first interest is all the more evident where the agreement
wife would of course be entitled to maintain an expressly provides for a change in policies, and in
action for breach against the estate. The estate’s effect provides further that the promisee’s right
insolvency, however, would make such an action shall attach to the new policies.
fruitless. Thus, the controversy revolves around For a certainty, the first wife’s equitable
interest would be easier to trace if the new policies
plaintiff’s right, in equity, to recover $7,000 of the
insurance proceeds. were quid pro quo replacements for the original
 Individualized Justice 267

policies. The record does not reveal whether this

the holder of the legal title may not in good con¬
was so. But inability to trace plaintiff’s equitable science retain the beneficial interest, equity con¬
rights precisely should not require that they not
verts him into a trustee” {Beatty v Guggenheim
be recognized, much as in the instance of damages
E.xplorulion Co., 225 NY 380, 386). Thus, a con¬
difficult to prove (cf., e.g., Randall-Sniith v 43rd structive trust is an equitable remedy. It is perhaps
St. Estates Corp., 17 NY2d 99, 105-106). The more different from an express trust than it is
separation agreement provides nexus between similar (5 Scott, Trusts [3d ed], § 461). As put so
plaintiff’s rights and the later acquired policies. well by Scott and restated at the Appellate Divi¬
The later policies were expressly contemplated by
sion, “[the constructive trustee] is not compelled
the parties, and it was agreed that plaintiff would
to convey the property because he is a constructive
have an interest in them. No reason in equity trustee; it is because he can be compelled to con¬
appears for denying plaintiff that interest, so long
vey it that he is a constructive trustee” {id., § 462,
as no one who has given value for the policies or at p 3413).
otherwise suffered a detriment is involved. The More precise definitions of a constructive
second wife’s innocence does not offset the wrong trust have been termed inadequate because of the
by the now deceased husband. failure to recognize the broad scope of construc¬
The conclusion is an application of the gen¬ tive trust doctrine {id., at p 3412). As another
eral rule that equity regards as done that which leading scholar has said of constructive trusts,
should have been done (2 Pomeroy, Equity Juris¬ “[t]he Court does not restrict itself by describing
prudence [5th ed], §364; see, e.g., Wallace v First all the specific forms of inequitable holding which
Trust Co., of Albany, 251 App Div 253, 256). will move it to grant relief, but rather reserves
Thus, if an insured, upon lapse or cancellation freedom to apply this remedy to whatever knavery
of insurance, followed by replacement with new
human ingenuity can invent” (Bogert, Trusts and
insurance, has a contractual obligation to desig¬ Trustees [2d ed rev, 1978], § 471, at p 29).
nate a particular person as beneficiary, equity will Four factors were posited in Sharp v Kos-
consider the obligee as a beneficiary. malski (40 NY2d 119, 121). Although the factors
In this case, the first wife’s interest in the are useful in many cases constructive trust doc¬
original policies extended as well to the later trine is not rigidly limited. For a single example,
acquired policies. The husband, upon lapse or one who wrongfully prevents a testator from exe¬
cancellation of the earlier policies, had by virtue cuting a new will eliminating him as beneficiary
of the separation agreement an obligation to name will be held as a constructive trustee even in the
her as beneficiary on the later policies, an obli¬ absence of a confidential or fiduciary relation, a

gation enforceable in equity despite the husband’s promise by the “trustee’, and a transfer in reliance
failure to comply with the terms of the separation by the testator (see, e.g., Latham v Father Divine,
agreement. Due to the husband’s failure to do 299 NY 22, 26-27). As then Judge Desmond said
what he should have done, the first wife acquired in response to the argument that a breach of a
not only a right at law to sue his estate for breach promise to the testator was necessary for impo¬
of contract, a right now worthless, but also an sition of a constructive trust (at p 27), “[a] con¬
equitable right in the policies, a right which, upon structive trust will be erected whenever necessary
the husband’s death, attached to the proceeds. to satisfy the demands of justice * * * [l]ts appli¬
[Citing cases] cability is limited only by the inventiveness of men
And, since the first wife was entitled to who find new ways to enrich themselves unjustly
$7,000 of the insurance proceeds at the time of
by grasping what should not belong to them”.
the husband’s death, she is no less entitled because It so happens, as an added argument, if it
the proceeds have already been converted by being were necessary, that the four factors enumerated
paid, erroneously, to the named beneficiaries. in Sharp v Kosmalski are perceptible in this case:
[Citing cases] Her remedy is imposition of a con¬ a promise, a transfer in reliance on the promise,
structive trust. the fiduciary relation between decedent and his

In the words of Judge Cardozo, “[a] con¬ first wife, and the “unjust enrichment” of the
structive trust is the formula through which the second wife. Because decedent and plaintiff were
conscience of equity finds expression. When prop¬ husband and wife, there is a duty of fairness in
erty has been acquired in such circumstances that financial matters extending even past the contem-
268 JUSTICE AND THE LEGAL SYSTEM

plated separation of the spouses. Hence, a sep¬ The first wife’s equitable interest attached to all
aration agreement based on one party’s the substituted insurance policies, whether they
misrepresentation of financial condition is void¬ named the second wife or the daughter as bene¬
able. ficiary. At the time each substituted policy was
It is agreed that the purpose of the construc¬ issued, decedent had an obligation to make the
tive trust is prevention of unjust enrichment first wife a beneficiary. None of the named ben¬
(Sharp V Kosmalski, 40 NY2d 119, 123, supra; eficiaries can escape the superior equitable interest
Restatement, Restitution, § 160; 5 Scott, Trusts of the first wife by pointing to other policies. True,
[3d ed], § 462.2). plaintiff might also be entitled to impose a con¬
Unjust enrichment, however, does not structive trust on the policy naming the daughter
require the performance of any wrongful act by as beneficiary. But that provides no cause for pro¬
the one enriched. [Citing cases] Innocent parties rating the constructive trust. The beneficiaries are
may frequently be unjustly enriched. What is jointly and severally liable, if the analogy appli¬
required, generally, is that a party hold property cable to express trusts be applied (3 Scott, Trusts
“under such circumstances that in equity and [3d ed], §§ 258-258.3). Plaintiff’s choice not to
good conscience he ought not to retain it” (Miller appeal the dismissal against the daughter should
V Schloss, 218 NY 400, 407; see Sharp v Kos¬ not bar her from collecting in full against the
malski, 40 NY2d 119, 123, supra; Sinclair v Purdy, second wife, who may have a right of contribution
235 NY 245, 253-254). A bona fide purchaser of against the daughter, a question not before the
property upon which a constructive trust would court and not passed on (cf. id.).
otherwise be imposed takes free of the construc¬ The issues in this case should not generate
tive trust, but a gratuitous donee, however inno¬ significant controversy. The action is in equity,
cent, does not. and the equities are clear. True, some courts have
The unjust enrichment in this case is man¬ decided the issues differently (Rindels v Prudential
ifest. At a time when decedent was, certainly, Life Ins. Co. of Amer., 83 NM 181; Lock v Lock,
anxious to remarry, he entered into a separation 8 Ariz App 138, 143; see, also, Larson v Larson,
agreement with his wife of 14 years. As part of 226 Ga 209, 211). Those cases, however, rely heav¬
the agreement, he promised to maintain $7,000 in ily on formalisms and too little on basic equitable
life insurance with the first wife as beneficiary. principles, long established in Anglo-American
Later he broke his promise, and died with insur¬ law and in this State and especially relevant when
ance policies naming only the second wife and family transactions are involved. “A court of
daughter as beneficiaries. They have collected the equity in decreeing a constructive trust is bound
proceeds, amounting to more than $55,000, while by no unyielding formula. The equity of the trans¬
the first wife has collected nothing. Had the hus¬ action must shape the measure of relief” (Beatty
band kept his promise, the beneficiaries would V Guggenheim E.xploration Co., 225 NY 380, 389
have collected $7,000 less in proceeds. To that [CARDOZO, J.], supra).
extent, the beneficiaries have been unjustly Accordingly, the order of the Appellate Divi¬
enriched, and the proceeds should be subjected to sion should be affirmed, with costs.
a constructive trust. Judges JASEN, GABRIELLI, JONES,
Moreover, the second wife’s complaint, if WACHTLER, FUCHSBERG and COOKE con¬
that it be, over the distinction drawn below cur.
between her daughter and herself is to no avail. Order affirmed.

Questions
1. Had the husband kept no life insurance after the divorce, would the New York Court
of Appeals have traced the first wife’s equitable interest to other assets? What if, for example,
the husband’s only asset at death were a house, held in joint tenancy with the second wife?
What if, in addition to the house, he left a pension with a substantial death benefit to the
 Individualized Justice 269

second wife? What if the second wife relied on these assets for her support? What if the
child of the second marriage were a minor?

2. Exactly how were the second wife and the daughter “unjustly enriched’’? Judge
Breitel says that, “Had the husband kept his promise, the beneficiaries would have collected
$7,000 less in proceeds.’’ Is Judge Breitel begging his own question?
3. The Court of Appeals talked extensively about equity. Did all the talk lead the court
to the right result?
4. The merger of law and equity may have led to an impoverishment of resort to
equitable principles in ordinary litigation. Scholars and judges, not trained in equity, tend
to think that literalness in the application of statutes and precedents is what law is all about.
In a way, the purpose of this coursebook has been to show that principles of justice invariably
interact with principles of law, even if the principles of justice are not explicitly stated. Do
you think that greater attention to the rich tradition of equity courts would (a) make the
justice considerations in a given case more explicit, or (b) improve the quality of judicial
decisions?
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 271

Justice at the Intersection of Law

and Procedure
CHAPTER SEVEN

7. 1 Prospectivity

The Sunburst Case

This may seem like one of the driest cases you’ve ever read. Appearances can be deceiving.
You may find it to be one of the most fascinating and intellectually challenging cases in the
world of law. As you read the opinion, you might want to make a chronological table of
what happened: when did all the events (all the rulings, all the holdings in all the cases) occur
in relation to each other? This should be of considerable help in interpreting the case.

Great Northern Ry. Co. v. Sunburst Oil & Refining Co.

287 U.S. 358
Supreme Court of the United States
December 5, 1932

Mr. Justice CARDOZO delivered the opinion is whether the annulment by retroaction of rates
of the Court. valid when exacted is an unlawful taking of prop¬
Sunburst Oil & Refining Company, the erty within the Fourteenth Amendment. A writ of
certiorari brings the case here.
respondent (shipper), brought suit against petitioner
(carrier), Great Northern Railway Company, to By a statute of Montana the Board of Rail¬
recover payments claimed to be overcharges for road Commissioners is empowered to fix rates of
freight. The charges were in conformity with a carriage for intrastate shipments. The rates thereby
established are not beyond recall. They may be
tariff schedule approved by the Railroad Commis¬
sion of Montana for intrastate traffic. After pay¬ changed by the board itself on the complaint either
ment had been made, the same commission which of shipper or of carrier, if found to be unreason¬
had approved the schedule held, upon a complaint able. In an action against the board, they may be
set aside upon a like showing by a judgment of
by the shipper, that the rates so approved were
excessive and unreasonable. In this action to recover the court. Until changed or set aside, they “shall
the excess so paid, the shipper recovered a judgment prima facie be deemed to be just, reasonable, and
which was affirmed upon appeal by the Supreme proper.” Revised Codes of Montana §§ 3796, 3809,
Court of Montana. The question, broadly stated, 3810.
272 JUSTICE AND THE LEGAL SYSTEM

The meaning of the statute was considered shippers and carriers who, during the period of its
by the Supreme Court of Montana in a cause reign, had acted on the faith of it. We are thus
determined in May, 1921. Doney v. Northern Pacific brought to the inquiry whether the judgment thus
Railway Co., 60 Mont. 209, 199 P. 432. A shipper rendered does violence to any right secured to the
of lumber brought suit against a carrier to recover petitioner by the Federal Constitution.
transportation charges which were alleged to be
unreasonable, though they were in accordance with [EDITOR’S NOTE: Justice Cardozo’s statement of
the published tariff. He did this without a prelim¬ what the Montana Supreme Court interpreted the
inary application to the board to modify the sched¬ Doney case to mean — “that a statute giving power
to the Commission or the court to declare a rate
ule. He did it without a preliminary suit in which
unreasonable was not to be read as meaning that
the board, being brought into court as a defendant,
would have opportunity to sustain the schedule and a declaration of invalidity should apply to inter¬
resist the charge. The court held that, until one of mediate transactions” — perhaps should be clarified
here. Consider that there are two distinct kinds of
these preliminary conditions had been satisfied, no
action for restitution could be maintained against allegations a shipper can make of the carrier’s
the carrier. It coupled that decision with the state¬ charges — (a) that they are excessive, or (b) that the
ment that, upon compliance with one or other of rates are unreasonable, (a) “Excessive” charges
the conditions, the excess, thus ascertained, might come about when the carrier charges more than it
be the subject of recovery. was entitled to charge under the rates fixed by the
Board. When that happens, the shipper can bring
The procedure there outlined was followed by
respondent Sunburst. It filed a complaint with the a judicial action for a refund, (b) “Unreasonable”
board to the effect that the existing tariff for the rates are those rates, fixed by the Board, that for
carriage of crude petroleum distillate was excessive some reason or other are alleged to be unreason¬
able. In the Doney case, the shipper brought a
and unreasonable, in that the rate of 20 '/2 cents
was based upon an estimated weight of 7.4 pounds judicial action. It was unclear from its Complaint
per gallon, whereas the actual weight is not more whether it was alleging (a) or (b) or both. The
than 6.6 pounds per gallon. The board sustained court dismissed the Complaint on the ground that
the complaint. In doing so it ruled, in conformity the shipper should have gone to the Board first
with the decision in the Doney case, that the and followed all the procedures that Justice Car-
published schedule prescribed the minimum and dozo summarized. The court then went on, in
the maximum to which carrier and shipper were dictum, to suggest that the Board had the power
required to adhere while the schedule was in force, in the first instance to find either (a) or (b). Then,
but that by the true construction of the statute the some years later in the Sunburst Case, the Montana
duty of adherence was subject to a condition or Supreme Court realized that it had misled everyone
proviso whereby annulment or modification would in the Doney Case. Indeed, Judge Galen, who
give a right of reparation for the excess or the wrote both the Doney opinion and the Sunburst
deficiency. The revision of the tariff was followed opinion, said in Sunburst: “Having written that
by this suit against the carrier, and later by a opinion for the court [in Doney], the author hereof
judgment by the Supreme Court of Montana in expresses apology for having misled the profession,
favor of the shipper which is now before us for and welcomes this opportunity to correct the error
review. made in interpreting our statutes.” The error Judge
The Supreme Court of Montana held that the Galen made in Doney was to mix up (a) and (b).
ruling in the Doney case was erroneous and would He now held that Doney was correct only insofar
not be followed in the future; that a rate established as (a) was concerned: a shipper is always entitled
by the Commission had the same effect as one to complain that the charges levied by the carrier
established by the Legislature; that the statute giv¬ were in excess of the Board’s published rates. But
ing power to the Commission or the court to declare as to (b). Judge Galen held that Doney should
a rate unreasonable was not to be read as meaning have said that there can be no finding — neither by
that a declaration of invalidity should apply to the Board nor by a court — that a shipper is entitled
intermediate transactions; but none the less that to a refund on the ground that a published rate is
the ruling in the Doney case was law until reversed unreasonable. True, the Board or a court can find
and would constitute the governing principle for that a given rate is unreasonable — because the stat-
 Justice at the Intersection of Law and Procedure 273

ute says that it can — but this only means that the
August, 1928. Carrier and shipper understood at
Board should thereupon change the rate and make
that time that the rates established by the Com¬
it reasonable. Think of the Board as a mini-leg¬ mission as the delegate of the Legislature were
islature. If a legislature finds that one of its statutes provisional and tentative. Valid lor the time being
is unreasonable, it can change the statute. Similarly, the rates indubitably were, a prop lor conduct while
the Board can change its rates. But all those
they stood, but the prop might be removed, and
changes only have prospective application. If charges, past as well as pre.sent, would go down
tomorrow the legislature of your state says that a at the same time. By implication of law there had
motorist must stop at the yellow signal (instead of been written into the statute a notice to all con¬
proceeding with caution), that does not mean that
cerned that payments exacted by a carrier in con¬
you can be arrested for having gone through a formity with a published tariff were subject to be
yellow signal a month ago. All legislative changes refunded if found thereafter, upon sufficient evi¬
only have prospective application. It follows that dence, to be excessive and unreasonable. The Con¬
a shipper is not entitled to a refund based on a stitution of the United States would have nothing
finding that a given fixed rate is unreasonable. As to say about the validity of a notice of that tenor
Judge Galen explained, “It truly would be an written in so many words into the body of the act.
anomalous situation, were the commission [the Carrier and shipper would be presumed to bargain
Board], acting as a quasi-judicial tribunal, permit¬ with each other on the basis of existing law. The
ted to find that a carrier had violated the law validity of the notice is no less because it was
because it charged a rate prescribed by the com¬ written into the act by a process of construction.

mission itself, acting in its legislative capacity.” The inquiry is irrelevant whether we would construe
Rather, if the shipper does succeed in proving that the statute in the same way if the duty of con¬
a rate is unreasonable, the Board will change the struction were ours and not another’s. Enough for
rate for the future (and in that way, perhaps, help us that the construction, whether we view it as
the shipper as far as its future business is con¬ wise or unwise, does not expose the court that
cerned). But whatever the shipper has already paid made it to the reproach of withholding from the
the carrier under the published rates cannot be carrier the privileges and immunities established by
the Constitution of the nation.
affected by a finding that the rates are unreason¬
able. This, then, is what Justice Cardozo meant 2. If the carrier did not suffer a denial of
when he said that a declaration by a court or by due process through the action of the trial court
the Board that a rate is unreasonable does not in subjecting the published tariff to the doctrine
of the Doney case then standing unimpeached, the
apply to “intermediate transactions.”]
petitioner, to prevail, must be able to show that a
The subject is likely to be clarified if we change was brought about through something done
divide it into two branches. Was a federal right or omitted by the Supreme Court of Montana in
infringed by the action of the trial court in adhering deciding the appeal.
to the rule imposed upon it in the Doney case by We think the posture of the case from the
the highest court of the state? If there was no viewpoint of constitutional law was the same after
infringement then, did one come about later when the decision of the appeal as it was after the trial.
the Supreme Court of Montana disavowed the rule There would certainly have been no denial of due
of the Doney case for the future, but applied it to process if the court in affirming the judgment had
the past? rendered no opinion or had stated in its opinion
1. The trial court did not impair a federal that the Doney case was approved. The petitioner
right by giving to a statute of the state the meaning is thus driven to the position that the Constitution
that had been ascribed to it by the highest court of the United States has been infringed because
of the state, unless such impairment would have the Doney case was disapproved, and yet, while
resulted if the meaning had been written into the disapproved, was followed. Adherence to precedent
statute by the Legislature itself. But plainly no such as establishing a governing rule for the past in
consequence would have followed if that course respect of the meaning of a statute is said to be a
had been pursued. The Doney case was decided, denial of due process when coupled with the dec¬
laration of an intention to refuse to adhere to it
as we have seen, in 1921. The transactions com¬
plained of occurred between August, 1926, and in adjudicating any controversies growing out of
274 JUSTICE AND THE LEGAL SYSTEM

the transactions of the future. incorrect, and therefore it must be overruled now.
We have no occasion to consider whether this
“If we were permitted to adhere to the erroneous
division in time of the effects of a decision is a construction of the statute announced in the Doney
sound or an unsound application of the doctrine
case, greater mischief would follow than can pos¬
of stare decisis as known to the common law.
sibly result from the operation of the statute as
Sound or unsound, there is involved in it no denial
now, we think, correctly interpreted. Justice is in
of a right protected by the Federal Constitution.
consequence done in this case without injury
This is not a case where a court, in overruling an
earlier decision, has given to the new ruling a because of our previous holding.” Now, back to
retroactive bearing, and thereby has made invalid Justice Cardozo’s opinion:]
what was valid in the doing. This is a case where On the other hand, a state may hold to the
a court has refused to make its ruling retroactive, ancient dogma that the law declared by its courts
and the novel stand is taken that the Constitution has a Platonic or ideal existence before the act of
of the United States is infringed by the refusal.
declaration, in which even the discredited decla¬
We think the Federal Constitution has no
ration will be viewed as if it had never been, and
voice upon the subject. A state in defining the
the reconsidered declaration as law from the begin¬
limits of adherence to precedent may make a choice
ning. The alternative is the same whether the sub¬
for itself between the principle of forward operation
ject of the new decision is common law or statute.
and that of relation backward. It may say that
The choice for any state may be determined by the
decisions of its highest court, though later over¬
juristic philosophy of the judges of her courts,
ruled, are law none the less for intermediate trans¬
their conceptions of law, its origin and nature. We
actions. Indeed, there are cases intimating, too
broadly, that it must give them that effect; but review, not the wisdom of their philosophies, but
never has doubt been expressed that it may so treat the legality of their acts. The state of Montana
them if it pleases, whenever injustice or hardship has told us by the voice of her highest court that,
will thereby be averted. with these alternative methods open to her, her
preference is for the first. In making this choice,
[EDITOR’S NOTE: Justice Cardozo’s reference to she is declaring common law for those within her
averting injustice was the explicit basis of the Mon¬ borders. The common law as administered by her
tana Supreme Court’s holding. Judge Galen found judges ascribes to the decisions of her highest court
that it would be unjust to deprive Sunburst of a
refund because Sunburst shipped its oil in reliance a power to bind and loose that is unextinguished,

on the procedure suggested in Doney that it could for intermediate transactions, by a decision over¬
obtain a refund if it successfully argued to the ruling them. As applied to such transactions, we
Board that the rate was unreasonable. And Judge may say of the earlier decision that it has not been
overruled at all. It has been translated into a
Galen found that such a holding in favor of Sun¬
judgment of affirmance and recognized as law
burst would also not be unjust to the carrier: “In
our opinion, in all justice and fairness it cannot anew. Accompanying the recognition is a prophecy,
be said that the carrier has, as a result, been which may or may not be realized in conduct, that
injured, for it must have appreciated its liability transactions arising in the future will be governed

under the holding of this court in the Doney case.” by a different rule. If this is the common-law
Indeed, Judge Galen found in the facts of the doctrine of adherence to precedent as understood
Sunburst case evidence that the carrier appreciated and enforced by the courts of Montana, we are
its potential liability: “Furthermore, it appears that not at liberty, for anything contained in the Con¬
in reliance upon the holding in the decision in that stitution of the United States, to thrust upon those
case [Doney] negotiations were under way by which courts a different conception either of the binding
the carrier proposed to make settlement with the force of precedent or of the meaning of the judicial
shipper [Sunburst] allowing reparation to the extent
that the rates charged by the carrier under the process.
published tariff at the time the shipments were The judgment of the Supreme Court of Mon¬
tana is accordingly
made were found by the board of railroad com¬
Affirmed.
missioners to be unreasonable.” Yet Doney was
 Justice at the Intersection of Law and Procedure 275

Notes and Questions

1. It is important to note at the outset that this is a case of intrastate commerce, and
hence does not get to the U.S. Supreme Court on the basis of the federal commerce clause.
What, then, is the constitutional issue here? The carrier (the Railroad) argued that it was
deprived of Due Process of Law under the Fourteenth Amendment. The relevant provision
of Section 1 of Amendment 14 reads;

nor shall any State deprive any person of life, liberty, or property, without due
process of law . . .

Since a corporation had long been regarded as a “person” under the Fourteenth Amendment,
the Railroad could cite this clause to claim that Montana deprived it of property without due
process of law.
When was Montana supposed to have done that? When the carrier was forced to pay
Sunburst an amount equivalent to the “overcharges”? By what agency did Montana do that?
By either the trial court or the Montana Supreme Court? Flow? This is a harder question.
Was it by virtue of what either of those courts dicP. Or by virtue of what either of those
courts saicP. How does Justice Cardozo answer these questions?
2. Why was the Montana Board of Railroad Commissioners set up in the first place?
Why did the legislature give it the power to fix railroad rates? Unregulated, railroads were
likely to give preferential rates to big shippers while discriminating against small shippers.
Economists might say that this is perfectly normal behavior; those who ship in volume are
entitled to a discount. But many small shippers did not see it that way. They felt that they
were the victims of discrimination. Because there were many small shippers, they were able
to organize into effective lobbying groups and convince state legislatures to help them out
against the giant railroads. Moreover, legislators may have felt that encouraging small business
was in the state’s interest, and hence there was a public economic rationale for railroad rate-
determination. In any event, many states set up rate-fixing agencies.
In the Sunburst case, we saw that the Board set rates according to quantity and unit
weight. Thus, for example, if a single shipper wanted to ship a valuable oil painting on the
railroad, she would be charged according to its weight (and bulk), but not according to its
value. The railroad would only be able to charge a modest shipping fee, instead of the
monopoly price it might prefer to charge if it could take into account the value of the painting,
the customer’s necessity of shipping it, the lack of shipping alternatives, and the shipper’s
poor bargaining power.
3. The Montana Board was set up in a quite different way from the federal agency, the
Interstate Commerce Commission. The ICC’s procedure was to have the carrier set the rates
in the first instance. Then the ICC could act as a quasi-judicial body. A shipper could come
in to the ICC to complain that the rates set by the carrier were unreasonable. The shipper
would present evidence, and the carrier would defend its rates. If the ICC held for the shipper,
it could order the carrier not only to change the rates, but also to pay reparations to the
shipper. The reparations would include a refund of the excess amount paid plus damages but

also might include a penalty if the carrier’s rates were unconscionable. In sharp contrast, the
276 JUSTICE AND THE LEGAL SYSTEM

Montana legislature set up its Board of Commissioners to fix rates. Thus, the Board is a
quasi-legislative body. Since it is charged with fixing reasonable rates, the Montana Supreme
Court in the Sunburst case held that its rates are to be deemed reasonable. Hence, if the
Board were to change its rates, that change would have prospective effect only. The fact that
a rate is changed does not mean that the previous rate was unreasonable.

Exercise

The actual charge in Sunburst for the shipment of crude petroleum distillate was based
on the total number of gallons shipped (a figure which was not in dispute) times the tariff
rate of 20.5 cents per hundred pounds. Sunburst in fact shipped 266 cars of petroleum distillate
between August 1926 and August 1928. It figured, and the court found, that if the correct
weight of 6.6 pounds per gallon were used instead of the estimated weight of 7.4 pounds per
gallon, the carrier would have had to charge Sunburst $3,262.25 less than what it in fact
charged Sunburst. When Sunburst shipped the oil, it had no choice; it paid that extra $3,262.25
to the carrier.’
But the published tariffs of the Montana Board of Railroad Commissioners not only
listed tariff rates; it also listed estimated weights. For example, a list might have looked
something like this:
Description of Item Est. Weight Shipping Rate
Homogenized Milk 3.5 lb. /gal. 12 cents/ 100 lb.
Skimmed Milk 4.0 lb. /gal. 14 cents/ 100 lb.
Crude Petrol. Dist. 7.4 lb. /gal. 20.5 cents/ 100 lb

Does this chart show a fixed ratio between weight and rate? There is a correlation between

weight and rate, but not a precise ratio. Why? Clearly, from the shipper’s point of view,
volume is just as important as weight. The number of tanker cars that are filled up by
whatever liquid is shipped is indeed significant to the carrier. A very light liquid will use just
as much volume as a very heavy liquid. But also significant is the weight of the liquid shipped;
the engine has to burn more fuel to carry the additional weight.
Ratemakers might consider other factors in the calculation of rates. If it is easier for the
carrier to clean out a tank car that has carried milk than it is to clean a car that has carried
oil, the extra labor costs for carrying the oil might make the rates for oil higher than milk.
Also, if the oil is combustible, extra fire precautions and fire insurance might require higher
rates for oil over milk. In addition, there might be a public policy encouraging the shipment
of milk as a food necessity; this might induce the Board to lower the milk rates.
What if volume were the only factor that mattered? Then one tanker car full of milk
should have the same shipping rate as one tanker car full of oil; the milk should have to pay

in Sunburst? In the next

1 How big a claim was $3,262.25 in 1932, the year of the Supreme Court’s decision
1933, the average income of independent- practitioner attorneys in the Mountain State region of the United States
year
was $2,489. If salaried attorneys are included, the figure drops to $2,065.
 Justice at the Intersection of Law and Procedure 277

20.5 cents per gallon. If we assume that weight is the only factor that mattered, then
Homogenized Milk should have slightly less than half the rate of oil; the Homogenized Milk
should have to pay only 10 cents per gallon. We don’t know what rates the Montana Board
actually fixed for these items, but from our hypothetical chart, we can see that the rate charged
for Homogenized Milk is between the “volume” rate and the “weight” rate.
What are the different kinds of items in the above chart?

1) type of commodity
2) pounds
3) gallons
4) cents

Of these, is there any one that is superfluous? If we are dealing with a liquid commodity,
then all we need to know is the cents per gallon for the type of commodity it is. The weight
per gallon is unnecessary information — unnecessary both to carrier and to shipper. It is like
the color of the commodity; we don’t need to know the color, or the edibility, or any other
such information. So long as we know the type of commodity, we look down the chart until
we find its rate — measured as cents per hundred gallons — and then both carrier and shipper
know what the freight should be charged.
So, if the weight were not listed in the chart, would Sunburst have been deprived of
pertinent information? Obviously not; whatever the weight was. Sunburst was going to be
charged 20.5 cents per hundred pounds. (If Sunburst wanted to know the weight, it could
simply weigh the oil.) Would the Railroad have been deprived of pertinent information?
Obviously not; the Railroad’s “bottom line” is the tariff rate it can charge Sunburst per
hundred pounds of oil that Sunburst ships. No matter what the estimated weight, and no
matter what the actual weight, the carrier will charge 20.5 cents per hundred pounds if the

item that is shipped is crude petroleum distillate. Thus, upon reflection, both the “estimated
weight” on the chart and the real weight are of no pertinent interest either to Sunburst or to
the Railroad.

But wasn’t the fight in the Sunburst case over excessive and unreasonable weights? Didn’t
Sunburst object to the Montana Board — successfully — that it was entitled to a refund because
the actual weight of the oil was less than the estimated weight? Or are appearances deceiving?
We know that the attorneys for Sunburst, appearing before the Montana Board on a
claim that the tariff charged was unreasonable, built their case upon the fact that the real
weight of the oil was less than the weight that the Montana Board listed as the estimated
weight. Sunburst claimed that it was entitled to a refund of $3,262.25 because of this fact.
We can imagine that the attorneys for the Railroad did not dispute the fact that the real
weight of the oil was less than the estimated weight. Then what did the attorneys argue to
the Montana Board on behalf of the Railroad?
Could the attorneys for the Railroad have argued that the question of weight was irrelevant?
We have already worked through the steps to reach a conclusion that estimated weights and
real weights are indeed irrelevant. Yet the attorneys for the railroad were faced with the political
reality that the Montana Board itself published the estimated weights. Would it have been
easy for the attorneys to say to the Board that all the estimated weights it has published and
has been publishing for ail these years are totally irrelevant?
278 JUSTICE AND THE LEGAL SYSTEM

Imagine the following dialogue:

RAILROAD ATTORNEY. We claim that the question of weight is irrelevant.

BOARD MEMBER. What? We take weights into account in fixing rates. How could they
possibly be irrelevant?

RAILROAD ATTORNEY. You take many things into account — volume, nature of the goods
shipped, and weight.
BOARD MEMBER. Yes, and those are all listed. Our list indicates the nature of the item
shipped, its estimated weight, and the shipping rate according to volume. So I still ask, how
can you say weight is irrelevant?

RAILROAD ATTORNEY. It’s obviously not irrelevant to the thought processes you went
through in arriving at the final volume shipping rate. But once you’ve arrived at that final
shipping rate, at that point it is irrelevant. This is a political body, an agency of the state.
You are charged with fixing reasonable rates in order to foster the economic development of
Montana and to avoid discrimination among shippers. You publish final tariff rates. No one
should be able to come in and pick out and isolate one single factor that went into your
decision, challenge it, and expect you to change the final tariff.

BOARD MEMBER. Why not, if we’ve made a mistake?

RAILROAD ATTORNEY. We’re not claiming you made a mistake. Sunburst isn’t claiming
you made a mistake. You estimated the weight of crude petroleum distillate to be 7.4 pounds
per gallon. No one is claiming that that was erroneous. It was, after all, just an estimate. So
you figured the total tariff, taking into account — among many factors — the estimated weight
of crude petroleum distillate. And that’s it. The fact that the real weight of Sunburst’s shipment
is less than the estimated rate has nothing to do with this case. Suppose the real weight turned
out to be more than the estimated rate. We couldn’t come here and argue that Sunburst has
to pay us extra. We’re bound by the 20.5 cents per hundred pounds. So, if we’re bound, why
isn’t Sunburst?

SUNBURST ATTORNEY. If the real weight had turned out to be more, you’d be here so
fast arguing for an increase that it would make everyone’s head spin.
RAILROAD ATTORNEY. We’ve never done that. Not once, ever, in our entire corporate
history.

SUNBURST ATTORNEY. Maybe it’s because you’ve never checked the real weight.

RAILROAD ATTORNEY. Why should we? It’s irrelevant.

SUNBURST ATTORNEY. That’s not the reason. The reason is because it’s expensive for you
to check weights, so you don’t.
BOARD MEMBER. Now, now, let’s not get into a fight over who should have done what.
The fact is we’ve got a case here. Sunburst is complaining that we set our rates too high. I
know— because 1 remember when we did it— that we got our best estimate of the weight, and
we used that number to help set the final rate. So now, if it turns out that our estimate was
too high, I don’t see why Sunburst isn’t entitled to a refund.
RAILROAD ATTORNEY. My point is— even if you had the actual weights when you fixed
 Justice at the Intersection of Law and Procedure 279

the tariffs, that is, even if you used 6.6 pounds per gallon instead of 7.4, so that your list ol
tariffs would say “estimated weight 6.6 pounds per gallon,” you still might have arrived at
the shipping rate of 20.5 cents. Because estimated weight was only one factor that went into
your decision about the ultimate shipping weight.

BOARD MEMBER. If that’s true, then why do you suppose we publish the estimated weight?
Under your theory, we might as well have left it off the chart, since it doesn’t matter.
RAILROAD ATTORNEY. Well, frankly, 1 don’t know why you publish the estimated weight.
Whatever you put down for the estimated weight doesn’t make any difference to Sunburst or
to us, so I don’t know why you do it.

BOARD MEMBER. And you probably don’t know why I’m going to vote against you in
this matter. And maybe you’ll never know. But that’s what I’m going to do unless you come
up with a better argument than that one.

Does this strike you as a plausible scenario? Can we say that the railroad attorney is
using “legal logic” and the board member is using “political logic”? Even if we could, what
difference would it make?
Who has the more emotionally appealing case — Sunburst or the Great Northern Railway?
Who is more likely to win before the Montana Board? Who did win? Of course. Sunburst’s
attorneys did not have an easy time of it. They had to convince the Board that the Board’s
published rates on crude petroleum distillate tariffs were unreasonable. The Board may not
have liked to hear the charge that it was unreasonable. (On the other hand, the Board may
have felt that once in a while it is a good idea to reverse itself on a rate matter, in order to
demonstrate that it is responsive to complaints from companies such as Sunburst.)
If you were the attorney for the railroad, and you lost the issue before the Board, would
you abandon your argument about the irrelevancy of weights when you got to the trial court?
Or, on losing in the trial court, would you abandon your argument when you got to the
Montana Supreme Court? Isn’t your argument one of principle — that factors, such as weight,
that go into an agency determination should not be singled out and challenged after the final
rates are announced? Doesn’t your argument boil down to a claim that the agency’s powers
are in reality legislative powers — that the power to fix rates is a delegation of legislative power
from the legislature (which does not have time itself to have hearings on rate-determinations)
to the agency? Thus, if the agency’s published tariffs are legislative in nature, wouldn’t you
argue — and keep arguing at every level you can — that nobody should be heard to second-guess
the final result on the ground that one of the factors that went into it turned out to be

incorrect? Isn’t the railroad’s attorney correct in claiming that even if the Montana Board had
used as an estimated weight the 6.6 number instead of the 7.4 number, they still might have
come out with a tariff rate of 20.5 cents per gallon?

Anyway, the Board turned out to be unsympathetic to the railroad’s argument, so the
attorneys for the railroad tried a different tack. They argued that the Board’s published rates
cannot be declared unreasonable by the very Board that fixed the rates in the first place. We
return to our imaginary dialogue;

BOARD MEMBER. Why can’t we find that our own rates are unreasonable?
RAILROAD ATTORNEY. Because you set them up in the first place. They must be deemed
280 JUSTICE AND THE LEGAL SYSTEM

reasonable as a matter of law.

BOARD MEMBER. You mean we can’t make a mistake?

RAILROAD ATTORNEY. That’s right. As a matter of law, there is a conclusive presumption

that you cannot make a mistake.

BOARD MEMBER. Sounds like hogwash to me. Anyone can make a mistake. I can make
a mistake. You can make a mistake. In fact, counsel, you’ve already made a lot of mistakes.
RAILROAD ATTORNEY. I’m sorry that you see it that way.
SUNBURST ATTORNEY. The Board is only being realistic. It sets its rates as best it can.
But once in a blue moon, it makes a mistake. It thinks that crude petroleum distillate weighs
7.4 pounds per gallon when in fact it weighs 6.6 pounds per gallon. That’s just a plain
mistake. The fair thing to do when you make a mistake is to acknowledge it and rectify it.
And not hide behind conclusive presumptions and whatnots.
BOARD MEMBER. Sounds right to us.

SUNBURST ATTORNEY. It’s not only right, but it’s required by law. The statute that set
up this Board says in so many words that this Board is entitled to find its own rates
unreasonable and change its rates either by its own initiative or upon the complaint of either
the shipper or the carrier.

BOARD MEMBER. That’s right. That’s the statutory language. Sunburst is correct again, as
usual.

By now the railroad attorneys are feeling despondent. They call time out and go into a
huddle. And they come up with a third strategy:

RAILROAD ATTORNEY. We’d like to argue that even if the Board can find its own rates
to be unreasonable, and even if the Board does find its own rates to be unreasonable,
nevertheless we relied on those rates and it would be unfair to us to make us pay a rebate
to Sunburst.

BOARD MEMBER. Why, if the rates were unreasonable?

RAILROAD ATTORNEY. Because we relied on them, even if they were unreasonable.
BOARD MEMBER. What business do you have relying on unreasonable rates?
RAILROAD ATTORNEY. What business do you have fixing unreasonable rates?

BOARD MEMBER. We are rapidly losing patience with you, counsel. Are you nearly finished?

RAILROAD ATTORNEY. I just want to add that you should ignore the Doney case in this
regard.
BOARD MEMBER. I see. At the end of an absolutely terrible presentation, you come in

with the clincher. You want us to ignore judicial precedent. I’ve heard a lot about the arrogance
of these big railroads, but I wouldn’t have believed it until today.
RAILROAD ATTORNEY. The Doney case is just plain wrong. Sooner or later the courts
will realize their mistake and overrule it.
BOARD MEMBER. And pigs will fly.

SUNBURST ATTORNEY. And railroads will charge fair rates.

 Justice at the Intersection of Law and Procedure 281

BOARD MEMBER. And every Tom, Dick, and Harry can ignore judicial rulings because
the courts Just might overturn them.

SUNBURST ATTORNEY. The railroads are crushing everybody in this state, they might as
well usurp the functions of the Supreme Court.
BOARD MEMBER. How much did you say the railroad owes you?
SUNBURST ATTORNEY. $3,262.25 plus interest and costs.

BOARD MEMBER. Well, we can’t give it to you as much as we’d like to. You’ve got to go
to district court and sue for a rebate. But we’ll give you this much. We hold that our rates
were unreasonable and excessive, and should have been changed to the basis of 6.6 pounds
per gallon.

So now the parties march off to the district court. Sunburst has a favorable ruling from
the Board — that the rates charged were unreasonable. The carrier has a portfolio of arguments,
all of which did not work when presented to the Board. What happened in court?
Justice Cardozo has told us what happened in the Montana courts. The railroad’s argument
that the Doney case was wrongly decided was accepted by the court. The court also accepted
the railroad’s argument that the Board had no power to award rebates to the shipper. More
than that, the court accepted the railroad’s argument that the court itself could not award
rebates to the shipper if the shipper’s contention was that the Board’s fixed rates were
unreasonable. (Recall that a shipper is entitled to a rebate if the carrier’s charges were
“excessive” — that is, in excess of the fixed rates.)
At this point, having had all its arguments — and more — accepted by the court, the lawyers
for the railroad must have begun their victory celebration. But wait — the Montana court holds
that Sunburst is entitled to its refund!
Imagine that both sets of attorneys have booked nearby restaurants for a victory party.
The news of what the court decided comes in. Which side should go ahead with its victory
celebration? Who won this case? The railroad won all the legal issues, and Sunburst won all
the money damages it asked for in the first place. Who is entitled to celebrate? And what
should be celebrated? Have you ever encountered a case where it was hard to tell who won?
Of course, there are many cases where each side wins a little — for example, in a divorce case
one party might win on the alimony issue and the other on the custody issue, and it is hard
to say who “won.” But in the Sunburst case, the railroad seems to have won every legal issue
in the case, and yet lost on the bottom-line issue of damages. How was this possible? What
happened to Due Process of Law?
We will come back to this Exercise after we have read a pair of Alaska cases. They may
throw some light on v/hat may have been going on in Sunburst.
282 JUSTICE AND THE LEGAL SYSTEM

City of Fairbanks v. Schaible

375 P.2d 201
Supreme Court of Alaska
Aug. 10, 1962

DIMOND, Justice.
At that time Oregon’s general laws included
Druska Schaible died of asphyxia on Novem¬ a civil code, enacted on October 11, 1862, and
ber 23, 1957, during a fire in the Lathrop building made effective June 1, 1863. Section 347 permitted
where she and her husband had an apartment. As an action to be maintained against any county,
her executor her husband brought a wrongful death incorporated town, school district, or other public
action under an Alaska statute against the City of corporation of like character either upon a contract
Fairbanks. In a case tried by the court judgment made by such county or other public corporation
in the sum of $50,000 was entered for the executor
in its corporate character, “or for an injury to the
against the City. rights of the plaintiff, arising from some act or
On this appeal there are several questions omission of such county or other public corpora¬
presented for review, the two principal ones being tion.” In 1869 the Oregon Supreme Court held in
(1) whether the City enjoys immunity from tort McCalla v. Multnomah County that under this
liability in this area; and (2) if there is no immunity, statute a county was liable for damages in tort
whether negligence was established. arising from failure to keep a bridge in repair. In
Despite sharp criticism of the doctrine of 1886 the court referred to the fact that the principle
municipal immunity from tort liability, the limi¬ of the McCalla case had been followed for over 17
tations designed by courts to permit a municipality years by numerous adjudications respecting the lia¬
to be held liable in certain circumstances have not bility of municipal corporations, and recognized
gone so far as to include fire-fighting activities. that under the statute a municipality had no immu¬
Except for negligent operation of fire equipment nity from tort liability for an act or omission in
on the public streets, where liability has been the exercise of either its governmental or proprie¬
imposed on the theory of nuisance, it appears to tary functions. This was the status of the law
be the rule without exception that a fire department respecting municipal tort liability in Oregon in 1884
maintained by a municipal corporation belongs to when Congress made provision for a civil govern¬
ment for Alaska. It then became the law in Alaska
the public or governmental branch of the munici¬
pality, and that the municipality is not liable for by reason of the well established rule that a statute
injuries to persons or property resulting from neg¬ adopted from another state, which has been con¬
ligence connected with the department’s operation strued by that state’s highest court, is presumed to
be adopted with the construction thus placed upon
it.
or maintenance. The apparent reason for not mak¬
ing exception to the immunity doctrine in this area
is the fear that extensive losses might bankrupt a Specifically, we hold here that the City of
Fairbanks, which maintains a fire department, may
municipality, and the thought that such losses could
better be distributed through the medium of private be held liable for injuries resulting from negligence
insurance. connected with the department’s fire-fighting activ¬
ities. Section 56-2-2 (1949) in plain language
In this jurisdiction the question is governed
by a statute which has long been part of the law imposes liability “for an injury to the rights of the
of Alaska. Congress enacted a law in 1884 to plaintiff arising from some act or omission” of the
City. There is nothing in the statute which suggests
provide a civil government for Alaska. Section 7
that liability in the operation and maintenance of
provided — a city owned fire department is to be excepted,
That the general laws of the State of and we are not justified in reading any such excep¬
Oregon now in force are hereby declared tion into the law.
to be the law in said district, so far as The City relies heavily on City of Fairbanks
the same may be applicable and not in V. Gilbertson, 262 F.2d 734 (9th Cir. 1959), where

conflict with the provisions of this act the Court of Appeals for the Ninth Circuit, in
or the laws of the United States. affirming a decision of the territorial district court.
 Justice at the Intersection oj Law and Procedure 283

held that the mantle of municipal immunity covers

the fire department stepped out ot its traditional
a fire-fighting activity of the City of Fairbanks. role of simply doing the best it could to light the
The statute involved (section 56-2-2) was ignored fire and save lives. It assumed a particular obli¬
by both the district court and the court of appeals.
gation to save Mrs. Schaible’s lile, and then tailed
The early decisions of the Oregon Supreme Court
to fulfill that obligation by not using other available
construing this law were not mentioned. Without means to effect her rescue.
giving reasons or citing legal authorities, the City While a fireman was backing down the ladder
merely states that we must take the law of that
case as if it had been announced by this court on after an unsuccessful attempt to reach decedent’s
window, he said to her: “Don’t jump, we’ll get
the day this court was created. you out.” Efforts were then apparently made to
Section 56-2-2 (1949), which we have held find a longer ladder but they were in use elsewhere.
imposes liability on a municipal corporation, was In the meantime no attempt was made to rescue
totally ignored in the Gilbertson opinion. Whether decedent with a fire net. No attempt was made to
it was considered in reaching that decision, we do place an available fire truck against the building
not know. Assuming it had not been considered, and place a 24 foot ladder on top of it in order
we cannot speculate as to whether a different result to gain the additional few feet needed to reach
would have been reached if the history and meaning decedent’s window. From ladders too short to reach
of that statute had been examined. In any event, other apartment windows, ropes had been thrown
it would make no difference here. The Supreme
to other persons awaiting rescue. But this wasn’t
Court of the State of Alaska is not bound by the done for Mrs. Schaible. The fireman who had
Ninth Circuit decision in Gilbertson. reached the top of the 24 foot ladder, and was
The trial court found that the fire depart¬ only from eight to ten feet from the window, made
ment’s failure to rescue decedent and its affirmative no attempt to deliver a rope to Mrs. Schaible. In
action in preventing others from saving her fact, he couldn’t remember whether “there was
amounted to negligence, and that this was the
ropes on the rig or not.”
proximate cause of her death. From a review of The City was guilty not only of failure to use
the evidence we conclude that these findings were common sense methods to rescue decedent. It was
not clearly erroneous, and therefore decline to set also guilty of affirmatively preventing rescue by
them aside. others. Some spectators had obtained an extension
Mrs. Schaible’s death was, of course, a tragic ladder of sufficient length to reach decedent’s win¬
event. But even more tragic was the fact, as clearly dow. They raised the ladder and started to extend
appears from the evidence, that in all likelihood it, and then were ordered by the City’s fire inspector
she would have been saved had it not been for to get away from the building. When they refused
certain acts and omissions of the City. to obey, they were driven off by fire hoses turned
We start at the point where Mrs. Schaible, on them by orders from the inspector. A bystander
cut off from escape through the hallway and stairs named Anderson climbed the ladder, put his head
because of fire and smoke, was standing by an and shoulders in the window, grabbed Mrs. Schai¬
open window of her apartment awaiting rescue. A ble by her foot and attempted to pull her over to
fireman climbed up a 24 foot ladder he had placed the window. He tried to get a fireman to give him
against the building in an attempt to reach dece¬ a rope and help get her out the window. But instead
dent’s window, but it was discovered that the ladder of getting the assistance he asked for, he was
was about eight to ten feet too short. Efforts were
ordered to get off the ladder. It was Anderson’s
then made to place a 12 foot ladder on top of the belief that Mrs. Schaible was not dead at that time.
24 foot one, but this was found to be impracticable. The evidence is sufficient to sustain the trial
The fire department had one 50 foot ladder, which court’s finding of negligence. This is not merely a
would have been long enough, but it was apparently case where the court in retrospect and using hind¬
being used to evacuate tenants from the other side sight has determined that the City might have done
of the building. things differently in its overall method of fighting
We do not decide that the lack of an addi¬ the fire. This is a case where the City specifically
tional ladder of sufficient length would alone be induced reliance on the skill and authority of its
sufficient evidence upon which to base a finding fire department to rescue decedent, and then failed
of negligence; for other circumstances show that to use due care to carry out its mission. It affir-
284 JUSTICE AND THE LEGAL SYSTEM

matively took over the rescue mission, and excluded court which may have led municipalities in Alaska
others from taking action which in all probability to rely upon a doctrine of immunity from tort
would have been successful. It thus placed decedent liability in the exercise of governmental functions,
in a worse position than when it took complete in order to avoid hardship on the municipalities
charge of rescuing her, and became responsible for the rule we state in this case shall apply only to
negligently bringing about her death. actions arising out of occurrences after the date of
We hold that in this case the City is liable this opinion.
for the negligence of its fire department. However, The judgment is affirmed as to the City of
since there were decisions of the territorial district Fairbanks.

Questions
1. Did BOTH sides win this case? The executor won a $50,000 judgment against the City
of Fairbanks. But didn’t the City of Fairbanks win more than that? Didn’t the City win
sovereign immunity with respect to all cases where the cause of action arose prior to the date
of entry of judgment in the Schaible case? (As for causes of action that arise after the entry
of judgment in Schaible, the City is on notice that it had better take out municipal liability
insurance.)

2. Another way of asking “who won?’’ is to ask, “did either party have any reason to
complain?’’ Certainly the executor had no reason to complain about the $50, (XX) damage
award. What about the City of Fairbanks? Are you sure?

Scheele v. City of Anchorage

385 P.2d 582
Supreme Court of Alaska
October 11, 1963

AREND, Justice. a municipality is not liable for the acts of its

We are asked in this case to apply retrospec¬ employees while engaged in a governmental func¬
tively the rule we laid down in City of Fairbanks tion.
V. Schaible, that a municipal corporation in Alaska On December 11, 1961, the trial court ordered
does not enjoy immunity from tort liability in the that the case should remain in pretrial conference
status until this court had rendered a decision in
exercise of either proprietary or governmental func¬
tions. the Schaible case. That decision was published on
August 10, 1962. On October 5, 1962, the trial
The plaintiff-appellant complained in the
court below that on September 29, 1960, she had court granted the city’s motion for summary judg¬
ment and the plaintiff appealed. The trial court in
suffered personal injuries arising out of police bru¬
granting the motion was influenced, no doubt, by
tality following her arre.st. The city and two of its
the following paragraph appearing in City of Fair¬
police officers, who had been named with it as
banks V. Schaible:
defendants, answered denying the charge of bru¬
We hold that in this case the City is
tality and alleging that the plaintiff’s injuries were
self-inflicted while she was in a state of extreme liable for the negligence of its fire depart¬
intoxication. The city subsequently moved for a ment. However, since there were deci¬
summary judgment in its favor on the theory that sions of the territorial district court
 Justice at the Intersection of Law and Procedure 285

which may have led municipalities in

losophies, but the legality ol their acts.
Alaska to rely upon a doctrine of immu¬
nity from tort liability in the exercise of What we said as obiter dictum in the Schaible
governmental functions, in order to case was prompted by a feeling we entertained at
avoid hardship on the municipalities the the time we wrote the opinion that it would work
rule we state in this case shall apply only a hardship upon municipalities to suddenly pluck
from them the mantle of municipal immunity and
to actions arising out of occurrences
subject them to liability for torts committed by
after the date of this opinion. [Emphasis
added.] them in the exercise of governmental functions at
times when they may have been relying upon the
We look upon what we said in the Schaible doctrine of such immunity. The hardship upon
case, regarding the prospective effect of that deci¬ municipalities which we had in mind was a financial
sion as obiter dictum, since it was not necessary one occasioned by their failure to protect themselves
to the decision in the case. Being obiter dictum it with liability insurance. It seems to us now that
is not binding upon us in this case. Not until it we might just as readily have assumed that the
was raised in the instant case have we had the cities, or at least some of them, did not rely upon
question squarely before us whether the rule in the doctrine of immunity, for they had the 1958
decision in Lucas v. City of Juneau, 168 F.Supp.
Schaible should be applied retrospectively or pro¬
spectively only. Now that we have been enlightened 195 (D. Alaska 1958), to guide them. In that case
by briefs and arguments of counsel in the case Judge Kelly stated that, if the City of Juneau had
presently before us and have had the benefit of been found negligent in the operation of an ambu¬
further research and more mature consideration of lance as a governmental function, it might have
our own, we are convinced that the dictum in the been held liable under the provisions of section 56-
passage quoted above from our opinion in Schaible 2-2 (1949) which provides:
was erroneous and we, therefore, disavow it. An action may be maintained ... for an
In the oft cited case of Great No. Ry. v.
injury to the rights of the plaintiff aris¬
Sunburst Oil & Ref. Co., the United States City].
ing from some act or omission of [the
Supreme Court held that there is no federal con¬
stitutional objection to a state’s highest court mak¬ So we conclude and now hold that the sub¬
ing a choice for itself in overruling an earlier
stantive defense of governmental immunity abol¬
decision, whether the new rule declared by it shall
ished by the decision in the Schaible case is also
operate prospectively only or shall apply also to abolished for the instant case and for all other
past transactions. The Court went on to explain:
pending cases, those not yet filed which are not
The alternative is the same whether the barred by the statute of limitations, and all future
subject of the new decision is common cases of action. Accordingly, the summary judg¬
ment entered in this case below is reversed and set
law or statute. The choice for any state
aside and the case is remanded to the trial court
may be determined by the juristic phi¬
losophy of the judges of her courts, their for further proceedings not inconsistent with this
conceptions of law, its origin and nature. opinion.
We review, not the wisdom of their phi¬ Reversed and remanded.

Notes and Questions

1. As in the Sunburst case, it is important to keep all the important dates in chronological
order. Here is a list of relevant dates in the two cases you have just read:

1949. Section 56-2-2 enacted.

1957. Mrs. Schaible dies of asphyxia.
1958. Decision in Lucas v. City of Juneau.
286 JUSTICE AND THE LEGAL SYSTEM

1959. Decision in City of Fairbanks v. Gilbertson (federal, 9th circuit)

1960. Idellar Scheele’s allegations of police brutality.
1962. Decision in City of Fairbanks v. Schaible.
1963. Decision in Scheele v. City of Anchorage.

2. Clearly Mrs. Schaible’s (that is, her estate’s) cause of action arose in 1957. The Alaska
Supreme Court held in 1962 that her executor was entitled to damages. The Court also held
that, for all causes of action arising after 1962, municipalities would have liability. Finally, the
Court stated that municipalities would have sovereign immunity from all causes of action
arising prior to 1962 except Mrs. Schaible’s.
Why did the court single out Mrs. Schaible for special consideration? Everyone else whose
cause of action arose prior to 1962 would get nowhere suing an Alaskan city. But Mrs.
Schaible was different. Why? Was her case especially unjust? How could the court know
whether there would be injustices in other cases?
3. As we saw, when the next case of injustice — allegations of police brutality — came up,
the court found itself in a dilemma. It had stated very clearly in Schaible that causes of action

arising prior to 1962 would be disallowed — except for Mrs. Schaible’s. Yet Idellar Scheele’s
cause of action arose prior to 1962, and she was the alleged victim of police brutality. Would
it not be unjust to exclude her? On the other hand, didn’t the City of Anchorage rely on the
Alaska Supreme Court’s own statement in Schaible that the City would be immune precisely
in cases like Idellar Scheele’s?
4. But how could the City of Anchorage — or any other Alaskan city — have relied on the
statement of immunity in Schaible when any causes of action that would have been immunized
by Schaible had already arisen by the time that the Schaible decision was announced?
5. Did the court in Scheele suddenly discover Section 56-2-2 (1949), which had been
overlooked by all previous courts? Check back to the Schaible case. Section 56-2-2 (1949) is
cited throughout the Schaible case! Then why did the court reach a different result?
6. Or was the result different? Consider:

(a) The injured plaintiff won in Schaible;

(b) The injured plaintiff won in Scheele.

Does this suggest that the City lost both cases? Consider Question 2 following Schaible.
1. What did Schaible hold? The court said “We hold ...” and went on to state what it
held. Did the court accurately state what it held?
8. Consider again the statute. Section 56-2-2 (1949). Did it mean one thing when it was
enacted in 1949, another thing when the Schaible court construed it in 1962, and a different
thing when the Lucas court construed it in 1958? Was the Scheele court in 1963 then free to
pick any of these constructions it wanted? Yet how can the same statute change its meaning
at all?
9. Can we say that the same statute always had the same meaning, but that the Schaible
court must have made a mistake when it said that, for all cases except Mrs. Schaible’s case,
where the cause of action arose prior to the decision in Schaible there would be sovereign
immunity of municipalities? How could the court have said such a thing in the face of Section
56-2-21 Was the Schaible court saying that Section 56-2-2 meant one thing as far as the
of action
executor in that ca.se was concerned, and something else for all cases when the cause
 Justice at the Intersection of Law and Procedure 287

arose before the decision in Schaiblel If so, how could a court say that, when the statute
itself hasn’t changed?
10. Does Justice Cardozo’s jurisprudential point, which you read in the Sunburst case,
now make more sense? Recall that Justice Cardozo said:

A state in defining the limits of adherence to precedent may make a choice for itself
between the principle of forward operation and that of relation backward. It may
say that decisions of its highest court, though later overruled, are law none the less
for intermediate transactions. ... On the other hand, a state may hold to the ancient
dogma that the law declared by its courts has a Platonic or ideal existence before
the act of declaration, in which even the discredited declaration will be viewed as if
it had never been, and the reconsidered declaration as law from the beginning. The
alternative is the same whether the subject of the new decision is common law or
statute. The choice for any state may be determined by the juristic philosophy of
the judges of her courts, their conceptions of law, its origin and nature. We review,
not the wisdom of their philosophies, but the legality of their acts.

Do you agree with this statement of the issues involved? How did the Supreme Court “review . . .
the legality of their acts”? Was it lawful for the Montana Supreme Court to award damages
to Sunburst?

Exercise

All three cases — Sunburst, Schaible, and Scheele — have been concerned, more or less
explicitly, with doing justice to the parties. The Sunburst case was perhaps the most explicit
in this regard. But is it not also clear, from the way the court stated the facts, that the
Schaible case was one that cried out for justice in the face of extraordinarily callous behavior
on the part of the fire department? And is it not also clear that in Scheele the allegation of
police brutality also cried out for corrective justice?
Yet how can we account for the fact that the Schaible court cut out claims like Idellar

Scheele’s? How could the judges of the Alaska Supreme Court have singled out Mrs. Schaible
for special treatment, while saying that all other causes of action that arose before or after
Mrs. Schaible’s and up to the date of the judgment in Mrs. Schaible’s case — that all those
other causes of action would be dismissed on the ground of sovereign immunity? Isn’t that
almost the very definition of injustice to all those other persons — to treat them differently
from Mrs. Schaible even though the statute is the same?
Imagine that you are a clerk to a judge on the Alaska Supreme Court during the

consideration of Mrs. Schaible’s case. The judge tells you that he has made up his mind on
the following points:

(a) He thinks it is fair to put all municipalities on notice that, from the date
of the decision in 1962 on, they will be liable in tort actions.
(b) He also thinks it is fair that, up to the date of the decision in 1962, any
cause of action in tort should be dismissed on the ground of sovereign immunity
because municipalities have relied on the Gilbertson decision.
288 JUSTICE AND THE LEGAL SYSTEM

However, the judge wants your guidance on what he should do about Mrs. Schaible. Should
her case be thrown out because it is the same as all the other cases in (b)? Or is her case an
exception to all those cases in (b), such that it should be treated as if it fell under category
(a)? What considerations can you come up with?
Are these some of the considerations that came to your mind?

(1) It would be unjust to treat Mrs. Schaible differently from everyone else
whose cause of action arose prior to 1962.
(2) The judge is unjust in distinguishing between (a) and (b). The entire (b)
category should be dropped.
(3) It would be unjust not to treat Mrs. Schaible differently from everyone else
whose cause of action arose prior to 1962 because her lawyer was responsible for
opening up the possibility of lawsuits against municipalities for everyone whose cause
of action arises after 1962. We need to reward plaintiffs like Mrs. Schaible for
straightening out the law.
(4) It is unjust to draw the line at causes of action that arose prior to 1962. It
would be fairer to allow the new liability rule for all cases that have not reached a
final decision prior to 1962, such as Idellar Scheele’s case.

Suppose you present this list to the judge, and he says: “As for your second point, forget
it. As for your fourth point, you don’t understand the underlying reason. We have to protect
municipalities which did not take out insurance in reliance on the Gilbertson immunity decision.
So the relevant time is when the cause of action arose, because that’s the only time to which
the insurability factor applies. As for point three, you raise an interesting question. Maybe it
would be very mean of us not to reward plaintiffs like Mrs. Schaible’s executor. Those lawyers
came in, wrote briefs, filed papers, argued orally, and actually convinced us that Alaskan
municipalities are liable in tort. We can hardly say to them that they convinced us, but that
we are not going to apply the rule in their own case.”
Now we have enough considerations to turn our attention back to Sunburst.
Is it not true that a very important justice consideration in the law is its reliability and
predictability? Can’t we say, of any judicial decision, that whatever it does, at least it should
clarify the law so that future similar cases won’t have to go through the same lengthy arguments
and future concerned parties will know what the law is? Isn’t it fair to both sides in a dispute
or potential dispute that they can look at a previous similar case and figure out what the law
is? Aren’t they entitled to notice about what the law provides? Aren’t they entitled to plan
their actions by taking into account the underlying law? Let us now test these questions.
Let us imagine that the next case after Sunburst is a case that is almost identical on its
facts.
 Justice at the Intersection of Law and Procedure 289

Trans-Ephemeral Ry. v. Moonburst

Imaginary Court of Montana

February 30, 1935

D’ Amato, J., delivered the opinion of the court:

In 1933, the year following the decision of the United States Supreme Court in the
Sunburst case, respondent Moonburst shipped 266 cars of refined rotgut distillate on petitioner’s
railroad at 20.5 cents per hundred gallons. Moonburst alleged that if the correct weight of
6.6 pounds per gallon were used instead of the Montana Board’s estimated weight of 7.4
pounds per gallon, the carrier would have had to charge Moonburst $3,262.25 less than what
it in fact charged Moonburst. When Moonburst shipped the distillate, it had no choice; it
paid that extra $3,262.25 to the carrier.

Moonburst’s attorneys went before the Montana Board and charged that the fixed rates
were unreasonable and excessive.^ Even though the attorneys for the railroad argued strenuously
that our previous decision in Sunburst, which was ratified in full by the Supreme Court of
the United States, stated as plainly as it could possibly state that the Board was wholly without
statutory authority to determine that its own rates were unreasonable, the Board went ahead
and held that the rates applied to Moonburst were indeed unreasonable. Moonburst then
brought an action in the district court for a refund against the railroad. Again, the attorneys
for the railroad argued strenuously that our previous decision in Sunburst, which was ratified
in full by the Supreme Court of the United States, stated as plainly as could possibly be
stated that no court had statutory authority to issue a rebate on the ground of unreasonable

rates. Nevertheless, the district court, persuaded by the oratory of Moonburst’s attorneys, went
ahead and awarded Moonburst $3,262.25 plus interest and costs. The railroad now appeals
to this court.
Upon mature reflection, we now see that all we actually held in Sunburst was that
Sunburst was entitled to a refund based on the unreasonableness of the fixed rates as determined
by the Montana Board. Everything else we said — including our comments that neither the
Board nor the district court had any power to give rebates based on unreasonable rates — was
purely dicta.
We also believe that we were right in Sunburst on the question of the power of the Board
and the district court. They simply do not have the power to give a shipper a rebate based
on the unreasonableness of the fixed rate. At best, the Board may change rates for the future.
It has no retroactive power; it is not like a court of law. Hence, there is no basis in law for
the Board or for the district court to award Moonburst a refund in the present litigation.
Yet Moonburst had a right to rely on what we did in Sunburst and not on what we said
in Sunburst. A holding is quite different from a dictum. Our judicial power consists in deciding
cases, not in pontificating our notions of what the law should be in any case other than the
case at hand. What we said about the lack of power in the Montana Board and in the district
court to give shippers a refund was wholly dicta, since it could not possibly have been

2 Moonburst hired the same lawyers who had been successful before the Board in the Sunburst litigation.
290 JUSTICE AND THE LEGAL SYSTEM

necessary to the result we reached — a result which gave to Sunburst that which we said
Sunburst could not have.
We have to be fair and just to Moonburst as we were fair and just to Sunburst.
A majority of this court therefore decides that Moonburst is entitled to its refund. However,
this is the very last time we will ever make an exception. The Montana Board and the courts
simply lack the legal power to give refunds, period. We cannot give that which we lack the
power to give. We make a single exception for Moonburst because Moonburst relied on
Sunburst. But no one in the future can rely on Moonburst, because we are explicitly saying
that Moonburst is unreliable from now on.

The decision of the court below is AFFIRMED.

Jacobson, J., delivered a dissenting opinion:

I dissent. More than that, I am disgusted.

The majority thinks it has settled this issue. But I happened to have overheard at lunch
a few days ago that a new case is going to come this way fairly shortly. It is called Starburst.
Starburst has already convinced the Montana Board that it was right in Sunburst and

Moonburst. So what do we say to Starburst when it bursts upon our scene? “Sorry, but we
told you in Moonburst to forget it. Enough is enough.”
How can we say that to poor little Starburst? Isn’t Starburst entitled to justice also? How
can we reasonably distinguish between Moonburst and Starburst?
I can just see it now. The majority, when Starburst arrives here, will say.

This is it. This is the very last one. Never again will we make any exceptions. We
make an exception for Starburst because it says that it was relying on our holding
in Moonburst. True, we held in Moonburst that the shipper could get a refund, so

technically everything else we said in Moonburst was dicta. But we can’t possibly go
on like this. We really do not have the judicial power to give refunds for unreasonable
rates. The legislature never gave us that power. So, after Starburst, we can never do
it again. AND THIS TIME WE REALLY MEAN IT. WE UNDERLINE THE
EACT THAT, NEVER AGAIN WILL A SHIPPER BE ABLE TO GET A REEUND
FROM ANY MONTANA COURT WHATSOEVER.

And then, what? Along comes Cloudburst and demands Starburst treatment. What will the
majority then say in Cloudburst. Will it say something like:

All right for now. Cloudburst gets its refund. But next time, if any attorney comes
here asking for an exception, we will hold that attorney in contempt of court.
threat was
And will the next attorney, representing Jailburst, say that the contempt of court
merely dicta? Will he issue that statement from prison?
have thrown
Our problem began when we tried to be fair to Sunburst. We should
ultimate fairness
Sunburst out of court. A little unfairness can go a long way — maybe toward
to all.
 Justice at the Intersection of Law and Procedure 291

Notes and Questions

1. Do you side with the majority or the dissent in Moonburstl Or with neither? What
would your opinion be?
2. With everyone agreeing that we have to be fair, and with the facts not at all in dispute,
why should we have such paradoxically sharp differences of opinion? Is this an anomaly in
the legal system?
3. What has happened to predictability? If you were advising Moonburst, what would
you predict on the basis of Sunburstl Assuming the imaginary decision in Moonburst, what
would you predict if your client was Starburst? At some point would you say, “These judges
are going to stick to what they say rather than what they do, and cut off this Sunburst
business. They’re just going to throw the next case out on the ground that there is no judicial
power to give a refund.’’ Suppose you expect the Montana court to do exactly that? Still, the
question is. When? At the time of Moonburstl StarbursP. Cloudburstl
4. What has happened to justice? Are these cases too hard to deliver justice to the
parties? Has the law painted itself into an intricate corner from which legal escape is impossible?
5. The cases we have studied so far have dealt with changes in the law that were supposed
to take place after the decision. The opposite side of the coin consists of cases where the
question is the retroactive effect to be given a decision. Actually, we got a glimpse of this
problem in Scheele. But the problem in Scheele centered around a statute, and statutory
meaning is supposed to be timeless. What if it had centered around a constitutional provision?
Suppose a court is convinced that a constitutional provision should be re-interpreted, but is
afraid that doing so would create substantial problems of retroactivity? What sorts of problems
could be created? This is the subject of the next section of this Chapter.

7.2 Retroactivity

Linkletter y. Walker

381 u.: 5. 618

Supreme Court of the United States
June 7, 1965

Mr. Justice Clark delivered the opinion of the presents the question of whether this requirement
Court. operates retrospectively upon cases finally decided
In Mapp V. Ohio, 367 U.S. 643 (1961), we in the period prior to Mapp. The Court of Appeals
held that the exclusion of evidence seized in vio¬ for the Fifth Circuit held that it did not, and we
lation of the search and seizure provisions of the granted certiorari in order to settle what has become
Fourth Amendment was required of the States by a most troublesome question in the administration
the Due Process Clause of the Fourteenth Amend¬ of justice. We agree with the Court of Appeals.
ment. In so doing we overruled Wolf v. Colorado, The Petitioner was convicted in a Louisiana
338 U.S. 25 (1949), to the extent that it failed to District Court on May 28, 1959, of “simple bur¬
apply the exclusionary rule to the States. This case glary.’’ After he was booked and placed in jail.
292 JUSTICE AND THE LEGAL SYSTEM

Other officers took his keys, entered and searched new law, but to maintain and expound the old
his home, and seized certain property and papers. one.” 1 Blackstone, Commentaries 69 (15th ed.
Later his place of business was entered and searched 1809). This Court followed that rule in Norton v.
and seizures were effected. These intrusions were Shelby County, 118 U.S. 425 (1886), holding that
made without a warrant. The State District Court
unconstitutional action “confers no rights; it
held that the arresting officers had reasonable cause imposes no duties; it affords no protection; it
for the arrest under Louisiana law and finding creates no office; it is, in legal contemplation, as
probable cause to search as an incident to arrest it
inoperative as though it had never been passed.”
held the seizures valid. The Supreme Court of The judge rather than being the creator of the law
Louisiana affirmed in February 1960. was but its discoverer.
On June 19, 1961, Mapp was announced. On the other hand, Austin maintained that
Immediately thereafter petitioner filed an applica¬ judges do in fact do something more than discover
tion for habeas corpus in the United States District law; they make it interstitially by filling in with
Court. After denial there he appealed and the judicial interpretation the vague, indefinite, or
Court of Appeals affirmed. It found the searches generic statutory or common-law terms that alone
too remote from the arrest and therefore illegal but are but the empty crevices of the law. Implicit in
held that the constitutional requirement of exclusion such an approach is the admission when a case is
of the evidence under Mapp was not retrospective. overruled that the earlier decision was wrongly
Petitioner has two points: (1) that the Court of decided. However, rather than being erased by the
Appeals erred in holding that Mapp was not ret¬ later overruling decision it is considered as an
rospective; and (2) that even though Mapp be held existing juridical fact until overruled, and inter¬
not to operate retrospectively, the search in his case mediate cases finally decided under it are not to
was subsequent to that in Mapp, and while his be disturbed.
final conviction was long prior to our disposition The Blackstonian view ruled English juris¬
of it, his case should nevertheless be governed by prudence and cast its shadow over our own as
Mapp.
evidenced by Norton v. Shelby County, supra. How¬
Initially we must consider the term “retro¬ ever, some legal philosophers continued to insist
spective” for the purposes of our opinion. A ruling that such a rule was out of tune with actuality
which is purely prospective does not apply even to
largely because judicial repeal ofttime did “work
the parties before the court. Great Northern R. hardship to those who [had] trusted to its exis¬
Co. V. Sunburst Oil & Refining Co., 281 U.S. 358 tence.” Cardozo, Address to the N. Y. Bar Assn.,
(1932). However, we are not here concerned with 55 Rep. N.Y. State Bar Assn. 263, 296-297 (1932).
pure prospectivity since we applied the rule The Austinian view gained some acceptance over
a hundred years ago when it was decided that
announced in Mapp to reverse Miss Mapp’s con¬
viction. That decision has also been applied to although legislative divorces were illegal and void,
cases still pending on direct review at the time it those previously granted were immunized by a
was rendered. Therefore, in this case, we are con¬ prospective application of the rule of the case.
cerned only with whether the exclusionary principle Bingham v. Miller, 17 Ohio 445 (1848).
And in 1932 Mr. Justice Cardozo in Great
enunciated in Mapp applies to state court convic¬
Northern R. Co. v. Sunburst Oil & Refining Co.,
tions which had become final^ before rendition of
our opinion. 287 U.S. 358, applied the Austinian approach in
At common law there was no authority for denying a federal constitutional due process attack
the proposition that judicial decisions made law on the prospective application of a decision of the
Montana Supreme Court. He said that a State
only for the future. Blackstone stated the rule that
“may make a choice for itself between the principle
the duty of the court was not to “pronounce a
of forward operation and that of relation back¬
ward.” Mr. Justice Cardozo based the rule on the
avoidance of “injustice or hardship” citing a long
3 By final we mean where the judgment of conviction list of state and federal cases supporting the prin¬
was rendered, the availability of appeal exhausted, and ciple that the courts had the power to say that
the time for petition for certiorari had elapsed before our decisions though later overruled “are law none the
decision in Mapp v. Ohio.
less for intermediate tran.sactions.”
 Justice at the Intersection of Law and Procedure 293

One form of limited retroaction which differs

the constitutional area where the exigencies of the
somewhat from the type discussed above is that
situation require such an application. It is true that
which was established in United States v. Schooner
heretofore, without discussion, we have applied new
Peggy, 1 Cranch 103 (1801). There, a schooner had constitutional rules to cases finalized before the
been seized under an order of the President which
promulgation of the rule. Petitioner contends that
commanded that any armed French vessel found
our method of resolving those prior cases dem¬
on the high seas be captured. An order of con¬ onstrates that an absolute rule of retroaction pre¬
demnation was entered on September 23, 1800. vails in the area of constitutional adjudication.
However, while the case was pending before this However, we believe that the Constitution neither
Court the United States signed an agreement with
prohibits nor requires retrospective effect. As
France providing that any property captured and
Justice Cardozo said, “We think the federal con¬
not “definitively condemned” should be restored. stitution has no voice upon the subject.” Great
Chief Justice Marshall said; Northern R. Co. v. Sunburst Oil & Refining Co.,

It is in the general true that the province 287 U.S. 358, 364 (1932) (referring to state court’s
of an appellate court is only to enquire prospective overruling of prior decision).
whether a judgment when rendered was Once the premise is accepted that we are
erroneous or not. But if subsequent to neither required to apply, nor prohibited from
the judgment and before the decision of applying, a decision retrospectively, we must then
weigh the merits and demerits in each case by
the appellate court, a law intervenes and
looking to the prior history of the rule in question,
positively changes the rule which gov¬
erns, the law must be obeyed, or its its purpose and effect, and whether retrospective
operation will further or retard its operation. We
obligation denied . . . [and] where indi¬
believe that this approach is particularly correct
vidual rights . . . are sacrificed for
national purposes ... the court must with reference to the Fourth Amendment’s prohi¬
bitions as to unreasonable searches and seizures.
decide according to existing laws, and if
it be necessary to set aside a judg¬ Rather than “disparaging” the Amendment we but
ment . . . which cannot be affirmed but apply the wisdom of Justice Holmes that “[tjhe
life of the law has not been logic: it has been
in violation of law, the judgment must
be set aside. experience.”
ed 1963). Holmes, The Common Law 5 (Howe

Under our cases it appears (1) that a change Since Weeks v. United States, 232 U.S. 383
in law will be given effect while a case is on direct (1914), this Court has adhered to the rule that
review. Schooner Peggy, supra, and (2) that the evidence seized by federal officers in violation of
effect of the subsequent ruling of invalidity on the Fourth Amendment is not admissible at trial
prior final judgments when collaterally attacked is in a federal court. In 1949 in Wolf v. Colorado,
subject to no set “principle of absolute retroactive supra, the Court decided that while the right to
invalidity” but depends upon a consideration of privacy — “the core of the Fourth Amendment” —
“particular relations . . . and particular conduct . . . was such a basic right as to be implicit in “the
of rights claimed to have become vested, of status,
concept of ordered liberty” and thus enforceable
of prior determinations deemed to have finality”; against the States through the Fourteenth Amend¬
and “of public policy in the light of the nature ment, “the ways of enforcing such a basic right
both of the statute and of its previous application.” raise questions of a different order. How such
Chicot County Drainage Dist. v. Baxter State arbitrary conduct should be checked, what remedies
Bank, 308 U.S. 371, at 374. against it should be afforded, the means by which
Thus, the accepted rule today is that in appro¬ the right should be made effective, are all questions
priate cases the Court may in the interest of justice that are not to be so dogmatically answered as to
make the rule prospective. preclude the varying solutions which spring from
While the cases discussed above deal with the an allowable range of judgment on issues not
invalidity of statutes or the effect of a decision susceptible of quantitative solution.” At 27-28.
overturning long-established common-law rules, The Court went on to say that the federal
there seems to be no impediment — constitutional exclusionary rule was not “derived from the explicit
requirements of the Fourth Amendment. . . . The
or philosophical— to the use of the same rule in
294 JUSTICE AND THE LEGAL SYSTEM

decision was a matter of judicial implication.” Since Wolf extended to federal officers to step across the
“we find that in fact most of the English-speaking street to the state’s attorney with their illegal evi¬
world does not regard as vital to such protection dence, thus eliminating a practice which tended to
the exclusion of evidence thus obtained, we must destroy the entire system of constitutional restraints
hesitate to treat this remedy as an essential ingre¬ on which the liberties of the people rest; that it
dient of the right.” While granting that “in prac¬ would promote state-federal cooperation in law
tice” the exclusion of evidence might be “an enforcement by rejecting the double standard of
effective way of deterring unreasonable searches,” admissibility of illegal evidence which tends to breed
the Court concluded that it could not “condemn suspicion among the officers, encourages disobe¬
as falling below the minimal standards assured by dience to the Constitution on the part of all the
the Due Process Clause a State’s reliance upon participants and violates “the imperative of judicial
other methods which, if consistently enforced,
would be equally effective.” The continuance of We believe that the existence of the Wolf
integrity.”
the federal exclusionary rule was excused on the
doctrine prior to Mapp is “an operative fact and
ground that the reasons for it were more “com¬ may have consequences which cannot justly be
pelling” since public opinion in the community ignored. The past cannot always be erased by a
could be exerted against oppressive conduct by local
new judicial declaration.” Chicot County Drainage
police far more effectively than it could throughout Dist. V. Baxter State Bank, 308 U.S., supra, at
the country. 374. The thousands of cases that were finally
The “asymmetry which Wolf imported into decided on Wolf cannot be obliterated. The “par¬
the law,” was indicated by a decision announced ticular conduct, private and official,” must be con¬
on the same day, Lustig v. United States, 338 U.S. sidered. Here “prior determinations deemed to have
74 (1949), holding that evidence given to federal
finality and acted upon accordingly” have “become
authorities “on a silver platter” by state officers vested.” And finally,” public policy in the light of
was not excludable in federal trials. Wolfs holding, the nature both of the ... [ Wolf doctrine] and of
in conjunction with the “silver platter” doctrine of its previous application” must be given its proper
Lustig, provided wide avenues of abuse in the weight. In short, we must look to the purpose of
Weeks’ exclusionary rule in the federal courts. the Mapp rule; the reliance placed upon the Wolf
Evidence seized in violation of the Fourth Amend¬ doctrine; and the effect on the administration of
ment by state officers was turned over to federal justice of a retrospective application of Mapp.
officers and admitted in evidence in prosecutions It is clear that the Wolf Court, once it had
in the federal courts.
found the Fourth Amendment’s unreasonable
In 1960 the Court’s dissatisfaction with the Search and Seizure Clause applicable to the States
“silver platter” doctrine, led to its rejection in the through the Due Process Clause of the Fourteenth
leading case of Elkins v. United States, 364 U.S. Amendment, turned its attention to whether the
206. The Court tightened the noose of exclusion exclusionary rule was included within the command
in order to strangle completely the use in the federal of the Fourth Amendment. This was decided in
courts of evidence illegally seized by state agents. the negative. It is clear that based upon the factual
It was in Elkins that the Court emphasized that considerations heretofore discussed the Wolf Court
then concluded that it was not necessary to the
the exclusionary rule was “calculated to prevent,
not to repair. Its purpose is to deter — to compel enforcement of the Fourth Amendment for the
respect for the constitutional guaranty in the only exclusionary rule to be extended to the States as a
effectively available way— by removing the incentive requirement of due process. Mapp had as its prime
purpose the enforcement of the Fourth Amendment
to disregard it.”
Mapp was announced in 1961. We affirma¬ through the inclusion of the exclusionary rule
within its rights. This, it was found, was the only
tively found that the exclusionary rule was “an
essential part of both the Fourth and Fourteenth effective deterrent to lawless police action. Indeed,
Amendments” and the only effective remedy for all of the cases since Wolf requiring the exclusion

the protection of rights under the Fourth Amend¬ of illegal evidence have been based on the necessity
for an effective deterrent to illegal police action.
ment; that it would stop the needless “shopping
around” that was causing conflict between federal We cannot say that this purpose would be advanced
and state courts; withdraw the invitation which by making the rule retrospective. The misconduct
 Justice at the Intersection of Law and Procedure 295

of the police prior to Mupp has already occurred

applied our rule retrospectively^ the principle that
and will not be corrected by releasing the prisoners
we applied went to the fairness ol the trial — the
involved. Nor would it add harmony to the delicate very integrity of the fact-finding process. Here, as
state-federal relationship of which we have spoken we have pointed out, the fairness ol the trial is
as part and parcel of the purpose of Mapp. Finally, not under attack. All that petitioner attacks is the

the ruptured privacy of the victims’ homes and admissibility of evidence, the reliability and rele¬
effects cannot be restored. Reparation comes too vancy of which is not questioned, and which may
well have had no effect on the outcome.
late.
Nor can we accept the contention of petitioner
Again and again this Court refused to recon¬ that the Mapp rule should date from the day of
sider Wolf and gave its implicit approval to hun¬ the seizure there, rather than that of the judgment
dreds of cases in their application of its rule. In of this Court. The date of the seizure in Mapp
rejecting the Wolf doctrine as to the exclusionary has no legal significance. It was the judgment of
rule the purpose was to deter the lawless action of this Court that changed the rule and the date of
the police and to effectively enforce the Fourth that opinion is the crucial date. In the light of the
cases of this Court this is the better cutoff time.
Amendment. That purpose will not at this late date
be served by the wholesale release of the guilty All that we decide today is that though the
victims. error complained of might be fundamental it is
not of the nature requiring us to overturn all final
Finally, there are interests in the administra¬ convictions based upon it. After full consideration
tion of justice and the integrity of the judicial of all the factors we are not able to say that the
process to consider. To make the rule of Mapp Mapp rule requires retrospective application.
retrospective would tax the administration of justice Affirmed.
to the utmost. Hearings would have to be held on Mr. Justice Black, with whom Mr. Justice
the excludability of evidence long since destroyed, Douglas joins, dissenting.
misplaced or deteriorated. If it is excluded, the The Court of Appeals held, and this Court
witnesses available at the time of the original trial now concedes, that the petitioner Linkletter is pres¬
will not be available or if located their memory ently in prison serving a nine-year sentence at hard
will be dimmed. To thus legitimate such an extraor¬ labor for burglary under a 1959 Louisiana State
dinary procedural weapon that has no bearing on Court conviction obtained by use of evidence un¬
reasonably seized in violation of the Fourth and
guilt would seriously disrupt the administration of
Fourteenth Amendments. On June 19, 1961, we
justice.
decided Mapp v. Ohio, 367 U.S. 643, in which the
It is urged, however, that these same consid¬
erations apply in the cases that we have applied
retrospectively in other areas, notably that of
In Griffin v. Illinois, the appeal which was denied
coerced confessions, and that the Mapp exclusion¬
ary rule should, therefore, be given the same dignity because of lack of funds was “an integral part of the
and effect. Coerced confessions are excluded from [state’s] trial system for finally adjudicating the guilt or
innocence of a defendant.” 351 US 18. Precluding an
evidence because of “a complex of values,” includ¬ appeal because of inability to pay was analogized to
denying the poor a fair trial. In Gideon v. Wainwrighi,
ing “the likelihood that the confession is untrue”;
we recognized a fundamental fact that a layman, no
“the preservation of the individual’s freedom of matter how intelligent, could not possibly further his
will”; and “[t]he abhorrence of society to the use claims of innocence and violation of previously declared
of involuntary confessions.” But there is no like¬ rights adequately. Because of this the judgment lacked
lihood of unreliability or coercion present in a reliability. In Jackson v. Denno, the holding went to the

search-and-seizure case. Rather than being abhor¬ basis of fair hearing and trial because the procedural

rent at the time of seizure in this case, the use in apparatus never assured the defendant a fair determination
of voluntariness. In addition, Mr. Justice White expressed
state trials of illegally seized evidence had been
grave doubts regarding the ability of the jury to disregard
specifically authorized by this Court in Wolf. a confession found to be involuntary if the question of
Finally, in each of the three areas in which we have guilt was uncertain.
296 JUSTICE AND THE LEGAL SYSTEM

Court specifically held that “all evidence obtained Miss Mapp’s case was decided in this Court —
by searches and seizures in violation of the Con¬ which would have given Linkletter ample time to
stitution is, by that same authority, inadmissible in petition this Court for virtually automatic relief on
a state court.” Stating that this Court had previ¬ direct review after the Mapp case was decided. The
ously held in Wolf v. Colorado that the Fourth Court offers no defense based on any known prin¬
Amendment was applicable to the States through ciple of justice for discriminating among defendants
the Due Process Clause of the Fourteenth Amend¬ who were similarly convicted by use of evidence
ment, this Court in Mapp went on to add: unconstitutionally seized. It certainly cannot do so
as between Linkletter and Miss Mapp. The crime
In short, the admission of the new con¬
with which she was charged took place more than
stitutional right by Wolf could not con¬
a year before his, yet the decision today seems to
sistently tolerate denial of its most im¬
portant constitutional privilege, namely, rest on the fanciful concept that the Fourth Amend¬
the exclusion of the evidence which an ment protected her 1957 offense against conviction
by use of unconstitutional evidence but denied its
accused had been forced to give by rea¬
son of the unlawful seizure. To hold protection to Linkletter for his 1958 offense. In
otherwise is to grant the right but in making this ruling the Court assumes for itself the
virtue of acting in harmony with a comment of
reality to withhold its privilege and en¬
Justice Holmes that “[t]he life of the law has not
joyment.
been logic: it has been experience.” Justice Holmes
Despite the Court’s resounding promises through¬ was not there talking about the Constitution; he
out the Mapp opinion that convictions based on was talking about the evolving judge-made law of
such “unconstitutional evidence” would “find no England and of some of our States whose judges
are allowed to follow in the common law tradition.
sanction in the judgments of the courts,” Linkletter,
convicted in the state court by use of “unconsti¬ It should be remembered in this connection that
tutional evidence,” is today denied relief by the no member of this Court has ever more seriously
judgment of this Court because his conviction criticized it than did Justice Holmes for reading its
became “final” before Mapp was decided. Link- own predilections into the “vague contours” of the
letter must stay in jail; Miss Mapp, whose offense Due Process Clause. But quite apart from that,
was committed before Linkletter’s, is free. This there is no experience of the past that justifies a
different treatment of Miss Mapp and Linkletter new Court-made rule to perpetrate a grossly invid¬
points up at once the arbitrary and discriminatory ious and unfair discrimination against Linkletter
nature of the judicial contrivance utilized here to simply because he happened to be prosecuted in a
break the promise of Mapp by keeping all people State that was evidently well up with its criminal
in jail who are unfortunate enough to have had court docket. If this discrimination can be excused
their unconstitutional convictions affirmed before at all it is not because of experience but because
June 19, 1961. of logic — sterile and formal at that — not, according
Miss Mapp’s Ohio offense was committed to Justice Holmes, the most dependable guide in
lawmaking.
May 23, 1957; Linkletter’s Louisiana offense oc¬
curred more than a year later— August 16, 1958. Interesting as the question may be abstractly,
Linkletter was tried in Louisiana, convicted, the this case should not be decided on the basis of
State Supreme Court affirmed, and a rehearing arguments about whether judges “make” law or
was denied March 21, 1960, all within about one “discover” it when performing their duty of inter¬
year and seven months after his offense was com¬ preting the Constitution. This Court recognized in
mitted. The Ohio Supreme Court affirmed Miss Chicot County Drainage District v. Baxter State
Mapp’s conviction March 23, 1960, approximately Bank, 308 U.S. 371, 374, an opinion in which 1
two years and 10 months after her offense. Thus, joined, that “an all-inclusive statement of a prin¬
had the Ohio courts proceeded with the same ciple of absolute retroactive invalidity cannot be
expedition as those in Louisiana, or had the Louis¬ justified.” And where state courts in certain situ¬
iana courts proceeded as slowly as the Ohio courts, ations chose to apply their decisions to the future
Linkletter’s conviction would not have been “fi¬ only, this Court also said that, “the federal con¬
nally” decided within the Court’s definition of stitution has no voice” forbidding them to do so.
“finally” until within about 10 days of the time Great Northern R. Co. v. Sunburst Oil & Ref
 Justice at the Intersection of Law and Procedure 297

Co., 287 U.S. 358, 364. In stating this Court’s search and seizure e.xclusionary rule should be given
position on the question, the opinion in the Chicot
like dignity and effect as the coerced confession
County case recognized that rights and interests exclusionary rule.
may have resulted from the existence and operation Yet the Court today by a chain of circuitous
of a statute which should be respected notwith¬
reasoning degrades the search and seizure exclu¬
standing its later being declared unconstitutional.
sionary rule to a position far below that ot the
Doubtless there might be circumstances in
rule excluding evidence obtained by coerced con¬
which applying a new interpretation of the law to fessions. The result is that this departure from the
past events might lead to unjust consequences philosophy of Mapp denies Linkletter a right to
which, as we said in Chicot, “cannot justly be challenge his conviction for an offense committed
ignored.” No such unjust consequences to Link- in August 1958 while it leaves Miss Mapp free
letter, however, can possibly result here by giving because of an offense she committed in 1957.
him and others like him the benefit of a changed
The Court says that the exclusionary rule’s
constitutional interpretation where he is languishing purpose of preventing law enforcement officers
in jail on the basis of evidence concededly used
from making lawless searches and seizures “will
unconstitutionally to convict him. And 1 simply not at this late date be served by the wholesale
cannot believe that the State of Louisiana has any
release of the guilty victims.” It has not been the
“vested interest” that we should recognize in these usual thing to cut down trial protections guaranteed
circumstances in order to keep Linkletter in jail. 1 by the Constitution on the basis that some guilty
therefore would follow this Court’s usual practice persons might escape. There is probably no one of
and apply the Mapp rule to unconstitutional con¬ the rights in the Bill of Rights that does not make
victions which have resulted in persons being pres¬ it more difficult to convict defendants. But all of
ently in prison. them are based on the premise, I suppose, that the
As the Court concedes, this is the first in¬ Bill of Rights’ safeguards should be faithfully en¬
stance on record where this Court, having juris¬ forced by the courts without regard to a particular
diction, has ever refused to give a previously con¬ judge’s judgment as to whether more people could
victed defendant the benefit of a new and more be convicted by a refusal of courts to enforce the
expansive Bill of Rights interpretation. 1 am at a safeguards. Such has heretofore been accepted as
loss to understand why those who suffer from the a general maxim. In answer to an argument made
use of evidence secured by a search and seizure in in the Mapp case, that application of the exclu¬
violation of the Fourth Amendment should be sionary rule to the States might allow guilty crim¬
treated differently from those who have been denied inals to go free, this Court conceded that:
other guarantees of the Bill of Rights. Speaking
In some cases this will undoubtedly be
of the right guaranteed by the Fourth and Fifth
the result. . . . The criminal goes free, if
Amendments not to be convicted on “unconstitu¬
he must, but it is the law that sets him
tional evidence,” the Court said in Mapp, only free. Nothing can destroy a government
four years ago, that:
more quickly than its failure to observe
... we can no longer permit that right its own laws, or worse, its disregard of
to remain an empty promise. Because it the charter of its own existence.
is enforceable in the same manner and
Little consolation can be gathered by people
to like effect as other basic rights secured
by the Due Process Clause, we can no who languish in jail under unconstitutional con¬
longer permit it to be revocable at the victions from the Court’s statement that “the rup¬
whim of any police officer who, in the tured privacy of the victim’s homes and effects
name of law enforcement itself, chooses cannot be restored. Reparation comes too late.”
Linkletter is still in jail. No State should be con¬
to suspend its enjoyment. Our decision,
sidered to have a vested interest in keeping prisoners
founded on reason and truth, gives to
in jail who were convicted because of lawless con¬
the individual no more than that which
the Constitution guarantees him. . . . 367 duct of the State’s officials. Careful analysis of the
U.S., at 660. (Emphasis supplied.) Court’s opinion shows that it rests on the premise
that a State’s assumed interest in sustaining con¬
There are peculiar reasons why the Mapp victions obtained under the old, repudiated rule
298 JUSTICE AND THE LEGAL SYSTEM

outweighs the interests both of the State and of outweighs the right of persons adjudged guilty of
the individuals convicted in having wrongful con¬ crime to challenge their unconstitutional convic¬
victions set aside. It certainly offends my sense of tions at any time. No words can obscure the simple
justice to say that a State holding in jail people fact that the promises of Mapp and Noia are to a
who were convicted by unconstitutional methods great extent broken by the decision here. I would
has a vested interest in keeping them there that reverse.

Questions
1. Do you agree with Justice Black that, where constitutional rights are involved, they
cannot be given to one person and denied to another similarly situated person?
2. But if your answer to the first question is Yes, how far would you extend it? You
probably would extend it to Linkletter, whose evidence was unconstitutionally seized by the
police a year after Mapp’s evidence was seized. Since Mapp’s case was reversed, surely
Linkletter’s should be reversed. But what about all the persons in prison who were convicted
on illegally seized evidence before Linkletter and before Mapp? Should all of those persons

be released? (A new trial would not be practically feasible for many of these “stale” cases,
for all the reasons suggested by the Court in its majority opinion.) Doesn’t the constitutional
rule apply to them fully as well as it applies to Mapp and Linkletter?
3. If your answer to the first question is No, was it easy for the Court to deny
retroactivity when illegally seized evidence is involved? Why? Is it because new trials would
be practically difficult for the government to win? Is it because illegally seized evidence has
nothing to do with the fairness of a trial? {Why should it be fair to convict someone on
illegally seized evidence?) Or is it because the exclusionary rule serves primarily a deterrent
(i.e., forward-looking) purpose and hence should not be applied retroactively?

Desist V. United States

394 U.S. 244

Supreme Court of the United States
March 24, 1969

Mr. Justice Stewart delivered the opinion of electronic recording device which did not physi¬
the Court.
cally intrude into the petitioners’ room. Because
The petitioners were convicted by a jury in there was no “trespass” or “actual intrusion into
the District Court for the Southern District of a constitutionally protected area,” the District
New York of conspiring to import and conceal Court and the Court of Appeals rejected the peti¬
heroin in violation of the federal narcotics laws. tioners’ argument that this evidence was inad¬
missible because the eavesdropping had violated
An important part of the Government’s evidence
consisted of tape recordings of conversations their rights under the Fourth Amendment. The
among several of the petitioners in a New York convictions were affirmed, and we granted cer¬
City hotel room. The tapes were made by federal tiorari to consider the constitutional questions
officers in the adjoining room by means of an thus pre.sented.
 Justice at the Intersection of Law and Procedure 299

Last Term in Katz v. United States, 389 U.S.

all of the cases . . . requiring the exclu¬
347, we held that the reach of the Fourth Amend¬
sion of illegal evidence have been based
ment “cannot turn upon the presence or absence on the necessity for an effective deter¬
of a physical intrusion into any given enclosure.” rent to illegal police action. . . . We can¬
Noting that the “Fourth Amendment protects not say that this purpose would be
people, not places,” we overruled cases holding advanced by making the rule retro¬
that a search and seizure of speech requires some spective. The misconduct of the
trespass or actual penetration of a particular police . . . has already occurred and will
enclosure. We concluded that since every elec¬ not be corrected by releasing the pris¬
tronic eavesdropping upon private conversations oners involved.
is a search or seizure, it can comply with consti¬
The second and third factors — reliance of
tutional standards only when authorized by a neu¬
tral magistrate upon a showing of probable cause law enforcement officials, and the burden on the
and under precise limitations and appropriate administration of justice that would flow from a
safeguards. The eavesdropping in this case was retroactive application — also militate in favor of
not carried out pursuant to such a warrant, and applying Katz prospectively. Katz for the first time
the convictions must therefore be reversed if Katz explicitly overruled the “physical penetration”
is to be applied to electronic surveillance con¬ and “trespass” tests enunciated in earlier deci¬
ducted before the date of that decision. We have sions of this Court. Our periodic restatements of
concluded, however, that to the extent Katz those tests confirmed the interpretation that police
departed from previous holdings of this Court, it and courts alike had placed on the controlling
should be given wholly prospective application. precedents and fully justified reliance on their
continuing validity.
Accordingly, and because we find no merit in any
Although there apparently have not been
of the petitioners’ other challenges to their con¬
victions, we affirm the judgment before us. many federal convictions based on evidence gath¬
Ever since Linkletter v. Walker, 381 U.S. 618, ered by warrantless electronic surveillance, we
have no cause to doubt that the number of state
established that “the Constitution neither prohib¬
convictions obtained in reliance on pre-Ao/z deci¬
its nor requires retrospective effect” for decisions
expounding new constitutional rules affecting sions is substantial. Moreover, the determination
criminal trials, the Court has viewed the retro¬ of whether a particular instance of eavesdropping
activity or nonretroactivity of such decisions as a led to the introduction of tainted evidence at trial
function of three considerations. As we most would in most cases be a difficult and time-con¬
recently summarized them in Stovall v. Denno, suming task, which, particularly when attempted
388 U.S. 293, long after the event, would impose a weighty bur¬
den on any court. It is to be noted also that we
The criteria guiding resolution of the have relied heavily on the factors of the extent of
question implicate (a) the purpose to be
reliance and consequent burden on the adminis¬
served by the new standards, (b) the tration of justice only when the purpose of the
extent of the reliance by law enforce¬
ment authorities on the old standards rule in question did not clearly favor either ret¬
roactivity or prospectivity. Because the deterrent
and (c) the effect on the administration
purpose of Katz overwhelmingly supports non¬
of justice of a retroactive application of retroactivity, we would reach that result even if
the new standards.
relatively few convictions w'ould be set aside by
Foremost among these factors is the purpose its retroactive application.
to be served by the new constitutional rule. This The petitioners argue that even if Katz is not
criterion strongly supports prospectivity for a given fully retrospective effect, at least it should
decision amplifying the evidentiary exclusionary govern those cases which, like the petitioners’,
were pending on direct review when Katz was
rule. Thus, it was principally the Court’s assess¬
ment of the purpose of Mapp v. Ohio, which led decided. Petitioners point out that in Linkletter,
it in Linkletter to deny those finally convicted the the only other case involving the retroactivity of
a Fourth Amendment decision, the Court held
benefit of Mapp's extension of the exclusionary
rule to the States; Mapp applicable to every case still pending on
300 JUSTICE AND THE LEGAL SYSTEM

direct review on the date of that decision. of justice with an even hand. 1 would understand
All of the reasons for making Katz retro¬
today’s ruling if in Katz we had announced a new
active also undercut any distinction between final constitutional search-and-seizure rule to be applied
convictions and those still pending on review. Both prospectively in all cases. But we did not do that;
the deterrent purpose of the exclusionary rule and nor did we do it in other recent cases announcing
the reliance of law enforcement officers focus variations of old constitutional doctrine. The most
upon the time of the search, not any subsequent notorious example is Miranda v. Arizona, 384 U.S.
point in the prosecution, as the relevant date. 436, where, as 1 recall, some 80 cases were presented
Exclusion of electronic eavesdropping evidence raising the same question. We took four of them
seized before Katz would increase the burden on and held the rest and then disposed of each of the
the administration of justice, would overturn con¬ four, applying the new procedural rule retroactively.
victions based on fair reliance upon pre-Zvo/z deci¬ But as respects the rest of the pending cases we
sions, and would not serve to deter similar denied any relief. Yet it was sheer coincidence that
searches and seizures in the future. those precise four were chosen. Any other single
In sum, we hold that Katz is to be applied case in the group or any other four would have
only to cases in which the prosecution seeks to been sufficient for our purposes.
introduce the fruits of electronic surveillance con¬
Mr. Justice Harlan, dissenting.
ducted after December 18, 1967.® Since the eaves¬
dropping in this case occurred before the date and In the four short years since we embraced the
notion that our constitutional decisions in criminal
was consistent with pre-A'atz decisions of this
Court, the convictions must be cases need not be retroactively applied, Linkletter
Affirmed. V. Walker, 381 U.S. 618, we have created an ex¬

traordinary collection of rules to govern the ap¬

Mr. Justice Douglas, dissenting.
plication of that principle. We have held that certain
It is a mystery to me why Katz v. United “new” rules are to be applied to all cases then
States, 389 U.S. 347, which was given retroactive subject to direct review, Linkletter v. Walker, supra,
effect to petitioner Katz will not be given retroactive certain others are to be applied to all those cases
in which trials have not yet commenced, Johnson
effect to petitioner Desist and his co-petitioners.
That does not seem to me to be the administration V. New Jersey, 384 U.S. 719 (1966), certain others

are to be applied to all those cases in which the

tainted evidence has not yet been introduced at
trial. Fuller v. Alaska, 393 U.S. 80 (1968); and
5 The dissenting opinion of Mr. Justice Fortas sug¬ still others are to be applied only to the party

gests that our holding today denies “the benefit of a

involved in the case in which the new rule is
fundamental constitutional provision, and not merely announced and to all future cases in which the
of court-made rules implementing a constitutional man¬ proscribed official conduct has not yet occurred.
date.” To the contrary, we simply decline to extend the Stovall V. Denno, 388 U.S. 293 (1967).
court-made exclusionary rule to cases in which its deter¬
Upon reflection, 1 can no longer accept the
rent purpose would not be served. The exclusionary rule
rule first announced two years ago in Stovall v.
“has no bearing on guilt” or “theat fairness of the trial.”
Linkletter v. Walker, 381 U.S., 638. Denno, and reaffirmed today, which permits this
Of course, Katz himself benefited from the new Court to apply a “new” constitutional rule entirely
principle announced on that date, and, as our Brother prospectively, while making an exception only for
Douglas observes, to that extent the decision has not the particular litigant whose case was chosen as
technically been given wholly prospective application. the vehicle for establishing that rule. Indeed, 1 have
But, as we recently explained in Stovall v. Denno, 388 concluded that Linkletter was right in insisting that
U.S. 293 (1967), the fact that the parties involved in the all “new” rules of constitutional law must at a
decision are the only litigants so situated who receive
minimum be applied to all those cases which are
the benefit of the new rule is “an unavoidable conse¬ still subject to direct review by this Court at the
quence of the necessity that constitutional adjudications
time the “new” decision is handed down.
not stand as mere dictum.” Whatever inequity may argu¬
Matters of basic principle are at stake. In the
ably result from applying the new rule to those “chance classical view of constitutional adjudication, which
beneficiaries” is “an insignificant cost for adherence to
1 share, criminal defendants cannot come before
sound principles of decision-making.”
 Justice at the Intersection of Law and Procedure 301

this Court simply to request largesse. This Court

The decision today in Desist v. United Slates
is entitled to decide constitutional issues only when
applies to only the limited number of cases where
the facts of a particular case require their resolution
the constitutionally forbidden wiretap or eaves¬
for a just adjudication on the merits. We do not
dropping occurred prior to December 18, 1967. It
release a criminal from jail because we like to do was on that day that we decided Katz v. United
so, or because we think it wise to do so, but only States, 389 US 347. The Court in effect grants
because the government has offended constitutional absolution to police invasions of individual privacy
principle in the conduct of his case. And when by wiretaps and electronic devices not involving
another similarly situated defendant comes before physical trespass, as long as the unconstitutional
us, we must grant the same relief or give a prin¬ conduct took place before Katz. It holds that only
cipled reason for acting differently. We depart from from and after Katz will it apply the Fourth
this basic judicial tradition when we simply pick Amendment’s command without reference to
and choose from among similarly situated defen¬ whether a physical trespass was involved. The sig¬
dants those who alone will receive the benefit of nificance of the decisions is not only that they
a “new” rule of constitutional law. deprive a relatively few convicted persons of their
The unsound character of the rule reaffirmed constitutional rights, but also that they diminish
today is perhaps best exposed by considering the the Constitution; they imply that the availability
following hypothetical. Imagine that the Second of constitutional principle can be the subject of
Circuit in the present case had anticipated the line judicial choice in circumstances which, I respect¬
of reasoning this Court subsequently pursued in fully submit, are far from compelling. I cannot
Katz V. United States, concluding — as this Court agree.
In the present cases, the Court decides that
there did — that “the underpinnings of Olmstead
and Goldman have been so eroded by our subse¬ the lawfulness of wiretaps and electronic eaves¬
dropping occurring before December 18, 1967, will
quent decisions that the ‘trespass’ doctrine there
enunciated can no longer be regarded as control¬ be controlled by Olmstead v. United States, a

ling.” Would we have reversed the case on the decision that the Court agrees is a false and in¬
ground that the principles the Second Circuit had supportable reading of the Constitution. The Court
announced — though identical with those in Katz — holds that the Fourth Amendment meant something
should not control because Katz is not retroactive? quite different before Katz was decided than it
To the contrary, I venture to say that we would means afterwards; that Katz and persons whose
have taken satisfaction that the lower court had rights are violated after the date of that decision
reached the same conclusion we subsequently did may have the benefit of the true meaning of the
constitutional provision, but that those who were
in Katz. If a “new” constitutional doctrine is truly
right, we should not reverse lower courts which victims before Katz may not.
have accepted it; nor should we affirm those which In Desist v. United States, the federal case
have rejected the very arguments we have embraced. decided today, the federal agents attached the “un¬
Anything else would belie the truism that it is the invited ear” of the microphone to the outer instead
task of this Court, like that of any other, 1 to do of the inner panel of the double door separating
justice to each litigant on the merits of his own their hotel room from that of the petitioners. Be¬
case. It is only if our decisions can be justified in cause of this distinction, their conduct is today
held to be immunized from Fourth Amendment
terms of this fundamental premise that they may
properly be considered the legitimate products of attack. Olmstead would sanction the differentia¬
a court of law, rather than the commands of a tion. If the microphone had been attached to the
inner panel, or if the agents had used a device that
super-legislature.
impinged by 1 1000th of an inch upon the room
Re-examination of prior developments in the
rented by petitioners, Olmstead would not have
field of retroactivity leads me irresistibly to the
sanctified the result.
conclusion that the only solid disposition of this
This distinction is, of course, nonsense, as 1
case lies in vacating the judgment of the Court of
suppose most rational persons would agree; and I
Appeals and in remanding this case to that court
am unwilling to suppose that if the majority in
for further consideration in light of Katz.
Olmstead had foreseen the ensuing development
Mr. Justice Fortas, dissenting. and uninhibited use of electronic devices for search-
302 JUSTICE AND THE LEGAL SYSTEM

ing out and seizing the words of others, it would alization of our great charter of liberty, set forth
have nevertheless allowed the perimeter of physical in our Constitution, cannot be achieved by this
property rights to limit the Fourth Amendment’s Court alone. History does not embrace the years
protection of citizens’ privacy from unseen inva¬ needed for us to hold, millimeter by millimeter,
sion. that such and such a penetration of individual rights
In any event, there is no doubt that Olmstead
is an infringement of the Constitution’s guarantees.
was thoroughly repudiated by this Court long be¬ The vitality of our Constitution depends upon
fore December 18, 1967, when Katz was decided. conceptual faithfulness and not merely decisional
Katz is not responsible for killing Olmstead. Prior
obedience. Certainly, this Court should not en¬
cases had left the physical-trespass requirement of courage police or other courts to disregard the
Olmstead virtually lifeless and merely awaiting the
plain purport of our decisions and to adopt a let’s-
death certificate that Katz gave it. They demon¬ wait-until-it’s-decided approach.
strated to all who were willing to receive the mes¬ Since Katz itself recognized that Olmstead had
sage that Olmstead would not shield eavesdropping
been “eroded by our subsequent decisions” and
because it took place outside the physical property that we had “since departed from the narrow view
line.
on which [it] .. .rested,” how can the Court now
Only those police officials and courts whose
say that because Katz overruled Olmstead it “was
devotion to wiretapping and electronic surveillance a clear break with the past”? The issue presented
is so intense as to induce them to exploit those by Desist is not whether the petitioners will be
techniques until the last spade of earth is shoveled given the benefit of Katz. The issue is not whether
on the doctrinal corpse have continued to rely on Katz is “retroactive.” The issue is whether because
Olmstead. It is not the least of the unfortunate
in Katz we formally announced that the “reach of
consequences of today’s decisions that they validate [the Fourth Amendment] . . . cannot turn upon the
this kind of foot-dragging. They reward those who presence or absence of a physical intrusion into
fought the battle for uncontrolled police eaves¬ any given enclosure,” persons claiming the benefit
dropping to the bitter end, despite the clear, though of this principle prior to that date must be denied
undelivered, verdict. They add this Court’s approval its protection. It is, I submit, entirely appropriate
to those who honor the Constitution’s mandate to state the issue in these terms because there can
only where acceptable to them or compelled by the be no doubt whatever that if the present cases had
precise and inescapable specifics of a decision of been presented to this Court a day, a year, or a
this Court. And they award dunce caps to those number of years before Katz, we would have held
law enforcement officers, courts, and public offi¬ that the petitioners’ constitutional rights had been
cials who do not merely stand by until an inevitable violated, and that the petitioners were entitled, like
decree issues from this Court, specifically articu¬ any other citizens, to their constitutional rights. In
lating that which is clearly immanent in the ful¬ these circumstances, I utterly fail to see how today’s
fillment of the Constitution, but who generously decisions can be justified. It is indeed a paradox
apply the mandates of the Constitution as the that Katz, whose role it was to bury the corpse of
Olmstead, is here being used to revive it.
developing case law elucidates them. The full re¬

Questions
1. Note that in Linkletter the Court announced that new constitutional rules need not

final prior to the Court’s new

be given retroactive effect to persons whose cases became direct appeal could benefit from
determination, but that persons whose cases were still on
says that a new rule need not be
the new constitutional rule. Then Desist comes along and
of direct appeal. Is the Court slowly
applied to persons whose cases are still in the process
equally? Is it doing so for reasons
chipping away the idea of treating equally situated people
e Court are, after all, government
of administrative convenience? The Justices of the Suprem
they are. Can it be said that they are
employees. If anyone is part of the “establishment,”
 Justice at the Intersection of Law and Procedure 303

simply protecting the government in these cases at the expense of individual defendants?
2. If your answer to this last question is Yes, consider the alternative. If the Court
were bound to apply all new rules retroactively, then might the same “administrative con¬
siderations” lead the Court to be very stingy about ever announcing a new rule? Or to put
this question another way, isn’t the possibility of non-retroactivity itself an important factor
in encouraging the Court to announce new extensions of human rights and liberties under
the Constitution?

3. But isn’t Justice Harlan’s logic irrefutable? Re-read his hypothetical case. Is it not
totally convincing? Apparently it was not totally convincing to the majority of the Court.
(But the majority of the Court did not address Justice Harlan’s hypothetical, and they
certainly did not answer it.)

Griffith v. Kentucky
479 U.S. 314
Supreme Court of the United States
January 13, 1987

Justice BLACKMUN delivered the opinion lenges. The prosecution used four of its five allot¬
of the Court. ted challenges to strike four of the five prospective
black jurors. The defense used eight of its allotted
These cases concern the retrospective appli¬ nine challenges to strike prospective white jurors.
cation of Batson v. Kentucky, 476 U.S. 79 (1986).
There were two duplicate strikes. The two extra
In Batson, this Court ruled that a defendant in
jurors who remained because of the duplicate
a state criminal trial could establish a prima facie
strikes, one of whom was a black person, then
case of racial discrimination violative of the Four¬
were removed by random draw, thus, no black
teenth Amendment, based on the prosecution’s person remained on the jury.
use of peremptory challenges to strike members
Defense counsel expressed concern that Grif¬
of the defendant’s race from the jury venire, and fith was to be tried by an all-white jury. He asked
that, once the defendant had made the prima facie
the court to request the prosecutor to state his
showing, the burden shifted to the prosecution to reasons for exercising peremptory challenges
come forward with a neutral explanation for those
against the four prospective black jurors. The
challenges. In the present cases we consider
request was refused. Counsel then moved for dis¬
whether that ruling is applicable to litigation pend¬
ing on direct state or federal review or not yet charge of the panel, alleging that the prosecutor’s
use of peremptory challenges to remove all but
final when Batson was decided. We answer that
one of the prospective black jurors constituted a
question in the affirmative.
violation of Griffith’s Sixth and Fourteenth
Petitioner Randall Lamont Griffith, a black Amendment rights. The court denied the motion.
person, was indicted in 1982 in the Circuit Court The jury returned a verdict of guilty on the charge
of Jefferson County, Ky. (the same court where
of first degree robbery and fixed petitioner’s pun¬
Batson was tried), on charges of first degree rob¬ ishment at 10 years’ imprisonment. The jury then
bery, theft by unlawful taking, and being a per¬ found petitioner guilty of being a persistent felony
sistent felony offender in the second degree. On offender, and enhanced his sentence to 20 years’
the first day of trial, the prosecution and defense imprisonment.
attorneys conducted voir dire examination of the Griffith timely filed here a petition for a writ
of certiorari. While his petition was pending, this
jury venire and exercised their peremptory chal¬
304 JUSTICE AND THE LEGAL SYSTEM

Court decided Batson v. Kentucky. the new rule retroactively to cases not yet final.
Twenty-one years ago, this Court adopted a Thus, it is the nature of judicial review that pre¬
three-pronged analysis for claims of retroactivity cludes us from “[sjimply fishing one case from
of new constitutional rules of criminal procedure. the stream of appellate review, using it as a vehicle
See Linkletter v. Walker, 381 U.S. 618 (1965). In for pronouncing new constitutional standards,
Linkletter, the Court held that Mapp v. Ohio,
and then permitting a stream of similar cases sub¬
which extended the Fourth Amendment exclu¬
sionary rule to the States, would not be applied sequently to flow by unaffected by that new rule.”
Second, selective application of new rules
retroactively to a state conviction that had become violates the principle of treating similarly situated
final before Mapp was decided. The Court defendants the same. See Desist v. United States,
explained that “the Constitution neither prohibits 394 U.S., at 258-259 (Harlan, J., dissenting). As
nor requires retrospective effect” of a new con¬ we pointed out in United States v. Johnson, the
stitutional rule, and that a determination of ret¬ problem with not applying new rules to cases
roactivity must depend on “weigh[ing] the merits pending on direct review is “the actual inequity
and demerits in each case.” The Court’s decision that results when the Court chooses which of
not to apply Mapp retroactively was based on “the many similarly situated defendants should be the
purpose of the Mapp rule; the reliance placed
chance beneficiary” of a new rule. Although the
upon the [previous] doctrine; and the effect on Court had tolerated this inequity for a time by
the administration of justice of a retrospective not applying new rules retroactively to cases on
application of Mapp!' See also Stovall v. Denno, direct review, we noted: “The time for toleration
388 U.S. 293, (1967) (retroactivity depends on “(a)
the purpose to be served by the new standards, has come to an end.”
In United States v. Johnson, our acceptance
(b) the extent of the reliance by law enforcement of Justice Harlan’s views led to the holding that
authorities on the old standards, and (c) the effect
“subject to [certain exceptions], a decision of this
on the administration of justice of a retroactive Court construing the Fourth Amendment is to be
application of the new standards”). applied retroactively to all convictions that were
The rationale for distinguishing between
not yet final at the time the decision was ren¬
cases that have become final and those that have dered.” The exceptions to which we referred
not, and for applying new rules retroactively to related to three categories in which we concluded
cases in the latter category, was explained at length
that existing precedent established threshold tests
by Justice Harlan in Desist v. United States, 394 for the retroactivity analysis. In two of these cat¬
U.S., at 256 (dissenting opinion).
egories, the new rule already was retroactively
In Justice Harlan’s view, and now in ours, applied: (1) when a decision of this Court did
failure to apply a newly declared constitutional
nothing more than apply settled precedent to dif¬
rule to criminal cases pending on direct review ferent factual situations, and (2) when the new
violates basic norms of constitutional adjudica¬ ruling was that a trial court lacked authority to
tion. First, it is a settled principle that this Court convict a criminal defendant in the first place.
adjudicates only “cases” and “controversies.” See The third — category where a new rule is a
U.S. Const., Art. Ill § 2. Unlike a legislature, “clear break” with past precedent — is the one at
we do not promulgate new rules of constitutional issue in these cases. We described it in United
criminal procedure on a broad basis. Rather, the States V. Johnson, 457 U.S., at 549-550:
nature of judicial review requires that we adju¬
dicate specific cases, and each case usually [W]here the Court has expressly
declared a rule of criminal procedure
becomes the vehicle for announcement of a new
rule. But after we have decided a new rule in the to be ‘a clear break with the past,’
Desist V. United States, 394 U.S., at
case selected, the integrity of judicial review
248, it almost invariably has gone on
requires that we apply that rule to all similar cases
to find such a newly minted principle
pending on direct review.
nonretroactive. In this . . . type of case,
As a practical matter, of course, we cannot
hear each case pending on direct review and apply the traits of the particular constitu¬
the new rule. But we fulfill our judicial respon¬ tional rule have been less critical than
sibility by instructing the lower courts to apply the Court’s express threshold determi-
 Justice at the Intersection of Law and Procedure 305

nation that the ‘“new” constitutional if these factors may be useful in deciding whether
interpretatio[n] ... so change[s] the law convictions that already have become final should
that prospectivity is arguably the proper
receive the benefit of a new' rule, the “clear break”
course.’ Once the Court has found that exception, derived from the Stovall factors, rein¬
the new rule was unanticipated, the sec¬
troduces precisely the type of case-specific anal¬
ond and third Stovall factors — reliance ysis that Justice Flarlan rejected as inappropriate
by law enforcement authorities on the
for cases pending on direct review'.
old standards and effect on the admin¬
Second, the u.se of a “clear break” exception
istration of justice of a retroactive creates the same problem of not treating similarly
application of the new rule — have vir¬ situated defendants the same. James Kirkland Bat¬
tually compelled a finding of non-ret¬ son, the petitioner in Batson v. Kentucky, and
roactivity. Randall Lamont Griffith, the petitioner in the

Thus, we recognized what may be termed a present Kentucky case, were tried in Jefferson Cir¬
cuit Court approximately three months apart. The
“clear break exception.” Under this exception, a same prosecutor exercised peremptory challenges at
new constitutional rule was not applied retroac¬
the trials. It was solely the fortuities of the judicial
tively, even to cases on direct review, if the new
process that determined the case this Court chose
rule explicitly overruled a past precedent of this
Court, or disapproved a practice this Court had initially to hear on plenary review. Justice POW¬
arguably sanctioned in prior cases, or overturned ELL has pointed out that it “hardly comports with
a longstanding practice that lower courts had uni¬ the ideal of ‘administration of justice with an even
formly approved. hand,’” when “one chance beneficiary — the lucky
individual whose case was chosen as the occasion
The question whether a different retroactivity
for announcing the new principle — enjoys retroac¬
rule should apply when a new rule is a “clear tive application, while others similarly situated have
break” with the past, however, is squarely before
us in the present cases. In Allen v. Hardy, a case their claims adjudicated under the old doctrine.”
Hankerson v. North Carolina, 432 U.S. 233 (1977).
which was here on federal habeas, we said that
See also Michigan v. Payne, 412 U.S. 47, 60 (1973)
the rule in Batson “is an explicit and substantial
(MARSHALL, J., dissenting) (“Different treat¬
break with prior precedent” because it “overruled
ment of two cases is justified under our Consti¬
[a] portion of Swain.” We therefore now reex¬ tution only when the cases differ in some respect
amine the rationale for maintaining a “clear
relevant to the different treatment”). The fact that
break” exception to the general proposition that the new rule may constitute a clear break with the
new rules governing criminal procedure should be
retroactive to cases pending on direct review. For past has no bearing on the “actual inequity that
the same reasons that persuaded us in United results” when only one of many similarly situated
defendants receives the benefit of the new rule.
States V. Johnson to adopt different conclusions
We therefore hold that a new rule for the
as to convictions on direct review from those that
conduct of criminal prosecutions is to be applied
already had become final, we conclude that an
retroactively to all cases, state or federal, pending
engrafted exception based solely upon the partic¬
on direct review or not yet final, with no exception
ular characteristics of the new rule adopted by the
Court is inappropriate. for cases in which the new rule constitutes a “clear
First, the principle that this Court does not break” with the past. Accordingly, in [Griffith],
the judgment of the Supreme Court of Kentucky
disregard current law, when it adjudicates a case
is reversed, and the case is remanded to that court
pending before it on direct review, applies regard¬
for further proceedings not inconsistent with this
less of the specific characteristics of the particular
new rule announced. The Court recognized in opinion.
United States v. Johnson that the fact that a new It is so ordered.
rule is a clear break with the past is relevant pri¬
Justice POWELL, concurring.
marily because it implicates the second and third
Stovall factors of reliance by law enforcement offi¬ I join the Court’s opinion, and consider it an
cials and the burden on the administration of jus¬ important step toward ending the confusion that
tice imposed by retroactive application. But even has resulted from applying Linkletter v. Walker,
306 JUSTICE AND THE LEGAL SYSTEM

381 U.S. 618 (1965), on a case-by-case basis. attacking their convictions in collateral
As the cases we decide today involve only the proceedings. As I have stated before, it
retroactivity of decisions pending on direct review, seems to me that the attempt to distin¬
it was not necessary for the Court to express an
guish between direct and collateral chal¬
opinion with respect to habeas corpus petitions. lenges for purposes of retroactivity is
As 1 read the Court’s opinion, this question is misguided. Under the majority’s rule,
carefully left open until it is squarely presented. It otherwise identically situated defendants
is to be hoped that the Court then will adopt the may be subject to different constitutional
Harlan view of retroactivity in cases seeking relief rules, depending on just how long ago
on habeas petitions. Under that view, habeas pe¬ now-unconstitutional conduct occurred
titions generally should be judged according to the and how quickly cases proceed through
constitutional standards existing at the time of the criminal justice system. The disparity
conviction. is no different in kind from that which

Justice WHITE, with whom THE CHIEF occurs when the benefit of a new con¬
stitutional rule is retroactively afforded
JUSTICE and Justice O’CONNOR join, dissent¬ to the defendant in whose case it is
ing.
Last Term this Court decided that the rule announced but to no others; the Court’s
new approach equalizes nothing except
announced in Batson should not apply on collateral the numbers of defendants within the
review of convictions that became final before the
disparately treated classes. Shea v. Louis¬
decision in Batson was announced. In reaching this iana, 470 U.S. 51, 62-64 (1985)
judgment, the Court weighed the three factors that (WHITE, J., dissenting).
it has traditionally considered in deciding the ret¬
The Court’s invocation of fairness also over¬
roactivity of a new rule of criminal procedure:
looks the fact that it is a fortuity that we overruled
‘““(a) the purpose to be served by the new stan¬
Swain v. Alabama, 380 U.S. 202 (1965), in a case
dards, (b) the extent of the reliance by law en¬ that came to us on direct review. We could as easily
forcement authorities on the old standards, and (c)
the effect on the administration of justice of a have granted certiorari and decided the matter in
a case on collateral review, such as Allen v. Hardy.
retroactive application of the new standards.”’” In that case, the principle of treating like cases
(Citing Stovall v. Denno, 388 U.S. 293 (1967)). No
alike would dictate that all cases on collateral review
Justice suggested that this test is unworkable. The
receive the benefit of the new rule. I trust that the
question, then, is why the Court feels constrained
Court would not go that far in letting the tail wag
to fashion a different rule for cases on direct review.
The reasons the Court offers are not new, and 1 the dog: good judgment would — I hope — win out
over blind adherence to the principle of treating
find them as unpersuasive today as I have in the
cases alike. Yet today the Court acts as if it has
past: no choice but to follow a mechanical notion of
It is the business of a court, the majority
fairness without pausing to consider “sound prin¬
reasons, to treat like cases alike; accord¬ ciples of decision-making,” Stovall v. Denno, 388
ingly, it is unfair for one litigant to U.S., at 301.
receive the benefit of a new decision For the foregoing reasons, I would adhere to
when another, identically situated, is de¬ the approach set out in Stovall v. Denno, and
nied the same benefit. The majority’s recognize no distinction for retroactivity purposes
concerns are no doubt laudable, but I between cases on direct and collateral review. But
cannot escape the conclusion that the even if I saw some merit in applying the Harlan
rule they have spawned makes no sense. approach to cases on direct appeal, I would none¬
Although the majority finds it in¬ theless preserve the exception for “clear breaks
tolerable to apply a new rule to one case recognized in United States v. Johnson, 457 U.S.
on direct appeal but not to another, it an¬
537 (1982). Under our precedent, “a decision
is perfectly willing to tolerate disparate nouncing a new standar d ‘is almost automat ically
treatment of defendants seeking direct
nonretroactive’ where the decision ‘has explicitly
review of their convictions and prisoners
overruled past precedent.’” Alien v. Hardy. As the
 Justice at the Intersection of Law and Procedure 307

majority in Johnson explained: dards and effect on the administration

Once the Court has found that [a] new of justice of a retroactive application of
rule was unanticipated, the second and the new rule — have virtually compelled
third Stovall factors — reliance by law en¬ a finding of non-retroactivity.
forcement authorities on the old stan¬ 1 respectfully dissent.

Notes and Questions

1. What does the majority mean when it says “The time for toleration is at an end”?
The non-retroactivity rule was, after all, the Court’s own rule. If there were any inequities
to “tolerate,” weren’t they inequities of the Court’s own making? Is the Supreme Court so
impressed with itself that it “tolerates” its own mistakes until it decides that the time for
“toleration is at an end”?
2. Is Justice White, dissenting, persuasive when he argues that there is no real difference
between applying a rule retroactively to cases on direct appeal and to cases on indirect
appeal (i.e., “collateral” appeal or “habeas corpus” cases)? If he is right that there is no
principled difference, do you agree with him that, therefore, Griffith should be denied the
benefit of the Batson rule? But, then, what’s the difference between Griffith and Batson?
They were both tried in the same court by the same prosecutor, and they were both the
victims of unfair peremptory challenges of the jury. What principled difference can Justice
White see between Griffith and Batson?
3. Retroactivity is frequently an issue in contexts other than the constitutional rights
of criminal defendants. In Los Angeles Department of Water & Power v. Manhart (Chapter
5, Section 2), Justice Stevens refused to apply the holding to the plaintiff class in that
case — all present or former female employees of the Department. Recall the holding: By
charging female employees more for mandatory retirement annuities than male employees
the Department had discriminated against individual female employees because of their sex.
The District Court had allowed a “retroactive” money recovery to the plaintiffs in Manhart.
By refusing to give the plaintiffs in Manhart an award, the Supreme Court is depriving the
very plaintiffs (and their lawyers) of the benefit of the rule of law that they put money,
time and effort into establishing. They brought the suit for their own benefit, knowing full
well that those coming after them would benefit as well. Now they find out that they will
not benefit at all. Consider Justice Stevens’ reasoning;

In Albemarle Paper Co. v. Moody, 422 U.S. 405, the Court reviewed the
scope of a district court’s discretion to fashion appropriate remedies for a Title
VII violation and concluded that “backpay should be denied only for reasons
which, if applied generally, would not frustrate the central statutory purposes of
eradicating discrimination throughout the economy and making persons whole for
injuries suffered through past discrimination.” Id., at 421.
The Albemarle presumption in favor of retroactive liability can seldom be
overcome, but it does not make meaningless the district courts’ duty to determine
that such relief is appropriate. For several reasons, we conclude that the District
Court gave insufficient attention to the equitable nature of Title VII remedies.
308 JUSTICE AND THE LEGAL SYSTEM

Although we now have no doubt about the application of the statute in this case,
we must recognize that conscientious and intelligent administrators of pension
funds, who did not have the benefit of the extensive briefs and arguments presented

to us, may well have assumed that a program like the Department’s was entirely
lawful. The courts had been silent on the question, and the administrative agencies
had conflicting views. The Department’s failure to act more swiftly is a sign, not
of its recalcitrance, but of the problem’s complexity. As commentators have noted,
pension administrators could reasonably have thought it unfair — or even illegal —
to make male employees shoulder more than their “actuarial share” of the pension
burden. There is no reason to believe that the threat of a backpay award is needed
to cause other administrators to amend their practices to conform to this decision.
Nor can we ignore the potential impact which changes in rules affecting
insurance and pension plans may have on the economy. . . . Risks that the insurer
foresees will be included in the calculation of liability, and the rates or contributions
charged will reflect that calculation. The occurrence of major unforeseen contin¬
gencies, however, jeopardizes the insurer’s solvency and, ultimately, the insured’s
benefits. Drastic changes in the legal rules governing pension and insurance funds,
like other unforeseen events, can have this effect. Consequently, the rules that
apply to these funds should not be applied retroactively unless the legislature has
plainly commanded that result.
There can be no doubt that the prohibition against sex-differentiated employee
contributions represents a marked departure from past practice. Although Title
VII was enacted in 1964, this is apparently the first litigation challenging contri¬
bution differences based on valid actuarial tables. Retroactive liability could be
devastating for a pension fund.*
Not one word about the effects on Manhart and the fellow members of her class! It is one

thing to lose a case (the plaintiffs surely lost in one sense); quite another to have the justice
of your position completely ignored in the court’s explanation of its position.
Now consider Justice Marshall’s dissent on the retroactivity result:
The Court here does not assert that any findings of the District Court were clearly
erroneous, nor does it conclude that there was any abuse of discretion. Instead,
certain
it states merely that the District Court gave “insufficient attention” to
factors in striking the equitable balance.
of
The first such factor mentioned by the Court relates to the “complexity”
pension fund adminis trators
the issue presented here, which may have led some
and that
to assume that “a program like the Department’s was entirely lawful,”
of a perceive d
the alternative of equal contributions was perhaps unlawful because
ers “should
“unfair[ness]” to men. The District Court found, however, that petition
larger contrib utions from
have been placed on notice” of the illegality of requiring
Commission
women on April 5, 1972, when the Equal Employment Opportunity

6 435 U.S., at 719-22.

 Justice at the Intersection of Law and Procedure 309

amended its regulations to make this illegality clear.

The other major factor relied on by the Court involves “the potential
impact ... on the economy” that might result from retroactive changes in “the
rules” applying to pension and insurance funds. According to the Court, such
changes could “jeopardizfe] [an] insurer’s solvency and, ultimately, the insureds’
benefits.” As with the first factor, however, little reference is made by the Court
to the situation in this case. No claim is made by either petitioners or the Court
that the relief granted here would in any way have threatened the plan’s solvency,
or indeed that risks of this nature were not “foreseefn]” and thus “included in
the calculation of liability” and reflected in “the rates or contributions charged.”
No one has suggested, moreover, that the relatively modest award at issue — involv¬
ing a small percentage of the amounts withheld from respondents’ paychecks for
pension purposes over a 33-month period — could in any way be considered “dev¬
astating.” And if a “devastating” award were made in some future case, this Court
would have ample opportunity to strike it down at that time.

Respondents in this case cannot be “made whole” unless they receive a refund
of the money that was illegally withheld from their paychecks by petitioners. Their
claim to these funds is more compelling than is the claim in many backpay sit¬
uations, where the person discriminated against receives payment for a period when
he or she was not working. Here, as the Court of Appeals observed, respondents
“actually earned the amount in question, but then had it taken from them in
violation of Title

Unlike the majority. Justice Marshall does consider the effect on the plaintiffs, in terms of
the strength of their claim. Presumably the practical effect of not getting an award was as
minimal on plaintiffs as having to pay an award would have been on the Department. Had
the practical effect on plaintiffs (or on the Department) been grave, would the majority
have stuck by its guns?
4. Clearly, the Supreme Court is a long way from figuring out a logical position regarding
retroactivity. More recent cases have not helped very much. In Teague v. Lane, 489 U.S.
288 (1989), a plurality of the Supreme Court adopted Justice Harlan’s view that new
constitutional rules of criminal procedure generally should not be applied retroactively to
cases on collateral review. The plurality affirmed its understanding that such new rules must
be applied retroactively to cases still on direct review. But Justice White’s criticism — that
this is a distinction without a principled difference — still hovers in the air.
In American Trucking Associations, Inc. v. Smith, 110 S. Ct. 2323 (1990), the Court
held that a taxpayer was not entitled to a refund when the taxing statute was in a later
case declared unconstitutional. Here there was no administrative inconvenience of holding
new trials, etc., that figured prominently in the criminal cases we have examined. The state
government that levied the tax could have easily been ordered by the Supreme Court to
refund the tax to all taxpayers who paid it. But the Supreme Court denied retroactive effect

^ 435 U.S., at 729-33.

310 JUSTICE AND THE LEGAL SYSTEM

to the unconstitutional tax.

There will surely be more Supreme Court decisions in the next few years that take up
the perplexing question of retroactivity. But our purpose in this Chapter has neither been
to present some issues in constitutional law nor to predict where the Supreme Court may
be going in this complex area of law. Rather, we have looked at some representative (and
intrinsically interesting) cases from a “justice” perspective. In this light, we ask the following
questions as a conclusion to the present Chapter:

(a) What role have justice considerations played in the unsteady evolution of the
Supreme Court’s retroactivity jurisprudence?
(b) Is this an area where, even if there is agreement that fairness is the operative
rule of decision, the Justices cannot reasonably agree upon what is fair?
(c) Can fairness and justice be decided in the abstract, so as to lay down a rule
for all future retroactive application of new constitutional decisions? What would that
rule be? If you cannot give that rule precise content, would you take the position that
no one can possibly give it precise content?
(d) We see the Supreme Court in these cases acting as a common-law court, taking

the cases one at a time and trying to work out principles of fairness. Yet why doesn’t
the process get itself resolved? In most areas of the common law, courts eventually
work out rules that are more or less stable. But in this area of retroactivity, even as
highly competent a court as the Supreme Court of the United States has obvious
difficulty in working out rules that hold the promise of stability over time. Indeed, we
see a Court collectively changing its mind, fearlessly overruling itself when the occasion
seems to call for a change.

(e) Is it possible that, in principle, every common law adjudication involves ret¬
roactive application of a rule?

(f) Are the retroactivity cases (and the Sunburst-Moonburst line as well) so intrin¬
sically complicated that their complexity outruns any judge’s conception of fairness?
Is a rule of justice impossible in these cases? If so, is that a problem?
(g) Finally, if “justice” cannot be reduced to a rule or a formula in the prospectivity
for the
and retroactivity cases, does that mean that “justice” is not a useful argument
only useful
attorneys who litigate such cases? Or, on the contrary, is “justice” the
argument?
 311

Justice on Trial
CHAPTER EIGHT

United States v. Alstoetter

Nuremberg Military Tribunals

Case III (Nuremberg, Germany 1949)

JUDGE OSWALD ROTHAUG, DEFEN¬ doing his job as a judge in the Third Reich. The
DANT: intense moral and intellectual dilemma had to be
[Judge Rothaug was one of 16 defendants tried faced by the judges on the court who had to reach
together by Branch III of the International Military
a judgment in Judge Rothaug’s case. How can one
Tribunal at Nuremberg in 1947. The counts against judge find another judge guilty for being a judge?
each defendant varied, but were drawn from four This dilemma became the subject of a dramatic
overall counts: (1) participation in a common motion picture. Judgment at Nuremberg, with
design and conspiracy to commit war crimes and Spencer Tracy playing the role of the American
crimes against humanity; (2) war crimes; (3) crimes judge on the court. The movie, although overly
against humanity; and (4) membership in criminal
long by today’s standards, is well worth viewing,
organizations. Rothaug was indicted under counts if the viewer is willing to make some concessions
(2), (3), and (4). regarding historical accuracy. Hollywood obviously
While most books written about the Nurem¬
took “license” with the facts in order to heighten
berg trials have focused upon the main war-crimes the dramatic effect, but was very true to the emo¬
trial at Nuremberg in September 1946 involving the tional content of the trial.
top 22 captured leaders of the Nazi Party — includ¬ Oswald Rothaug was born on May 17, 1897.
ing Goering, Doenitz, Keitel, Ribbentrop, Fless, His education was interrupted from 1916 to 1918
Speer, and Rosenberg — there were over 3,000 war- while he was in the army. He passed the final law
crimes prosecutions of German defendants in var¬ examination in 1922 and the State examination for
ious countries in Europe following the Second the higher administration of justice in 1925.
World War. (In addition, the Military Tribunal for Rothaug was a member of the National
the Far East conducted many additional trials of Socialist Jurists’ League and the National Socialist
Japanese defendants.) The main trial of the Nazi Public Welfare Association. In his affidavit he
leaders resulted in a Judgment that upheld the denied belonging to the SD. However, the testimony
legality under international criminal law of the four of Elkar and his own admission on the witness
counts summarized above. Thus, by the time of stand establishes that he was an “honorary collab¬
Judge Rothaug’s trial in 1947, there was little room orator” for the SD on legal matters. He was a
left for the defendant to argue that the proceedings member of the Leadership Corps of the Nazi Party.
themselves were legally suspect. In December 1925 he began his career as a
jurist, first as an assistant to an attorney in Ans-
Yet, Judge Rothaug’s trial, in particular,
raised an issue that was new in the Nuremberg bach and later as an assistant judge at various
prosecutions: whether a judge could be guilty for courts. In 1927 he became public prosecutor in
312 JUSTICE AND THE LEGAL SYSTEM

Findings
Hof in charge of criminal cases. From 1929 to
1933 he officiated as counsellor at the local court 1. The defendant Katzenberger is fully Jewish
in Nuremberg. In June 1933 he became Senior and a German national; he is a member of the
Public Prosecutor in the public prosecution in Jewish religious community.
Nuremberg. Here he was the official in charge of As far as his descent is concerned, extracts
general criminal cases, assistant of the Chief Public from the birth registers of the Jewish community
Prosecutor handling examination of suspensions of at Massbach show that the defendant was born on
proceedings and of petitions for pardon. From 25 November 1873 as the son of Louis David
November to April 1937 he officiated as counsellor Katzenberger, merchant, and his wife Helen nee
of the district court in Schweinfurt. He was legal
Adelberg. The defendant’s father, born on 30 June
advisor in the civil and penal chamber and at the 1838 at Massbach, was, according to an extract
Court of Assizes, as well as chairman of the lay from the Jewish registers at Thundorf, the legiti¬
assessors’ court. From April 1937 to May 1943 he mate son of David Katzenberger, weaver, and his
was director of the district court in Nuremberg,
wife Karoline Lippig. The defendant’s mother Lena
except for a period in August and September of Adelberg, born on 14 June 1847 at Aschbach, was,
1939 when he was in the Wehrmacht. During this according to extracts from the birth register of the
time he was chairman of the Court of Assizes, Jewish religious community of Aschbach, the legit¬
and Chief Justice of the Nuremberg Special Court. imate daughter of Lehmann Adelberg, merchant,
From May 1943 to April 1945 he was Senior and his wife. Lea. According to the Thundorf
Public Prosecutor of the People’s Court in Berlin. register, the defendant’s parents were married on 3
Here, as head of Department I he handled for a December 1867 by the district rabbi in Schweinfurt.
time cases of high treason in the southern Reich
The defendant’s grandparents on his father’s side
territory, and from January 1944 cases concerning were married, according to extracts from the Thun¬
the undermining of public morale in the Reich
dorf register, on 3 April 1832; those of his mother’s
territory. side were married, according to an extract from
One of the cases Rothaug presided over was the register of marriages of the Jewish religious
the Katzenberger Case in 1942. The report of the community of Aschbach, on 14 August 1836. . . .
case, which follows, is a document that was intro¬ The defendant Katzenberger came to Nurem¬
duced in evidence against Rothaug:] berg in 1912. Together with his brothers, David and
Max, he ran a shoe shop until November 1938.
The Katzenberger Case
The defendant married in 1906, and there are two
13 March 1942
children, ages 30 and 34.
Nuremberg Special Court
Up to 1938 the defendant and his brothers,
Judge Rothaug, Presiding Judge: David, and Max, owned the property of 19 Spit-
tlertorgraben in Nuremberg. There were offices and
In the name of the German People:
storerooms in the rear building, whereas the main
The Special court for the district of the Court building facing the street was an apartment house
of Appeal in Nuremberg with the District Court with several apartments.
Nuremberg-Fuerth in the proceedings against Katz¬ The codefendant Irene Seiler arrived in 1932
enberger, Lehmann Israel, commonly called Leo, to take a flat in 19 Spittlertorgraben, and the
merchant and head of the Jewish religious com¬ defendant Katzenberger has been acquainted with
munity in Nuremberg, and Seiler, Irene, owner of her since that date.
a photographic shop in Nuremberg, both at present 2. Irene Seiler, nee Scheffler, is a German
in arrest pending trial, the charges being racial citizen of German blood.
pollution and perjury— in public session of 13 Her descent is proved by documents relating
March 1942, in the presence of — to all four grandparents. She herself, her parents,
The President— Dr. Rothaug, Senior Judge and all her grandparents belong to the Protestant
of the District Court; Lutheran faith. This finding of the religious back¬
Associate Judges— Dr. Ferber and Dr. ground is based on available birth and marriage
Hoffmann, Judges of the District Court; certificates of the Scheffler family which were made
Public Prosecutor for the Special Court — part of the trial. As far as descent is concerned
Markl: therefore, there can be no doubt about Irene Seiler,
 Justice on Trial 313

nee SchelTler, being of German blood. investigating judge of the local Nuremberg Court
The defendant Katzenberger was fully cog¬ on 9 July 1941, made deliberately untrue statements
nizant of the fact that Irene Seiler was of German and affirmed under oath that this contact was
blood and of German nationality. without sexual motives and that she believed that
On 29 July 1939, Irene Scheffler married to apply to Katzenberger as well.
Johann Seiler, a commercial agent. There have been Seiler, it is alleged, has thereby become guilty
no children so far. of being a perjuring witness.
In her native city, Guben, the defendant
[The applicable statutes are:
attended secondary school and high school up to
Unterprima [eighth grade of high school], and after Law for the Protection of German Blood and
Honor, §2:
that, for 1 year, she attended the Leipzig State
Academy of Art and Book Craft.
Sexual intercourse (except in marriage)
She went to Nuremberg in 1932 where she
between Jews and German nationals of Ger¬
worked in the photographic laboratory of her sister man or German-related blood is forbidden.
Hertha, which the latter had managed since 1928
as a tenant of 19 Spittlertorgraben. On 1 January Decree Against Public Enemies:
1938, she took over her sister’s business at her own Section 2
expense. On 24 February 1938, she passed her Crimes During Air Raids
professional examination.
Whoever commits a crime or offense
3. The defendant Katzenberger is charged with
against the body, life, or property, taking
having had continual extra-marital sexual inter¬
advantage of air raid protection measures, is
course with Irene Seiler, nee Scheffler, a German
punishable by hard labor of up to 15 years,
national of German blood. He is said to have
or for life, and in particularly severe cases,
visited Seiler frequently in her apartment in Spit¬
punishable by death.
tlertorgraben up to March 1940, while Seiler visited
)t( 4c i|c 3|C
him frequently, up to autumn 1938, in the offices
of the rear building. Seiler, who is alleged to have Section 4
got herself in a dependent position by accepting Exploitation of the State of War a Reason
gifts of money from the defendant Katzenberger for More Severe Punishment
and by being allowed money from the defendant Whoever commits a criminal act exploit¬
Katzenberger and by being allowed delay in paying ing the extraordinary conditions caused by
her rent, was sexually amenable to Katzenberger. war is punishable beyond the regular punish¬
Thus, their acquaintance is said to have become ment limits with hard labor of up to 15 years,
of a sexual nature, in particular, sexual intercourse or for life, or is punishable by death if the
occurred. They are both said to have exchanged sound common sense of the people requires
kisses sometimes in Seiler’s flat and sometimes in it on account of the crime being particularly
Katzenberger’s offices. Seiler is alleged to have despicable.]
often sat on Katzenberger’s lap. On these occasions The defendants have said this in their
Katzenberger, in order to achieve sexual satisfac¬
tion, is said to have caressed and patted Seiler on
defense —
her thighs through her clothes, clinging closely to The defendant Seiler — When in 1932 she
Seiler, and resting his head on her bosom. arrived in the photographic laboratory of her sister
The defendant Katzenberger is charged with in Nuremberg, she was thrown completely on her
having committed this act of racial pollution by own resources. Her sister returned to Guben, where
taking advantage of wartime conditions. Lack of she opened a studio as a photographer. Her father
supervision was in his favor, especially as he is had recommended her to the landlord, the defen¬
said to have visited Seiler during the black-out. dant Katzenberger, asking him to look after her
and to assist her in word and deed. This was how
Moreover, Seiler’s husband had been called up, and
consequently surprise appearances of the husband she became closely acquainted with the Jew Katz¬
were not to be feared. enberger.
The defendant Irene Seiler is charged with As time went on, Katzenberger did indeed
having, on the occasion of her interrogation by the become her adviser, helping her, in particular, in
314 JUSTICE AND THE LEGAL SYSTEM

her financial difficulties. Delighted with the friend¬ II

ship and kindness shown her by Katzenberger she The court has drawn the following conclusions
came to regard him gradually as nothing but a
from the excuses made by the defendant Katzen¬
fatherly friend, and it never occurred to her to
berger and the restrictions with which the defendant
look upon him as a Jew. It was true that she called
Seiler
ful: attempted to render her admissions less harm¬
regularly in the storerooms of the rear house. She
did so after office hours, because it was easier then
When, in 1932, the defendant Seiler came to
to pick out shoes. It also happened that during settle in Nuremberg at the age of 22, she was a
these visits, and during those paid by Katzenberger fully grown and sexually mature young woman.
to her flat, she kissed Katzenberger now and then According to her own admissions, credible in this
and allowed him to kiss her. On these occasions case, she was not above sexual surrender in her
she frequently would sit on Katzenberger ’s lap relations with her friends.
which was quite natural with her and had no In Nuremberg, when she had taken over her
ulterior motive. In no way should sexual motives
sister’s laboratory in 19 Spittlertorgraben, she
be regarded as the cause of her actions. She always entered the immediate sphere of the defendant
thought that Katzenberger’s feelings for her were Katzenberger. During their acquaintance she grad¬
purely those of a concerned father. ually became willing, in a period of almost 10
Basing herself on this view she made the years, to exchange caresses and, according to the
statement to the investigating judge on 9 July 1941 confessions of both defendants, situations arose
and affirmed under oath, that when exchanging which can by no means be regarded merely as the
those caresses neither she herself nor Katzenberger outcome of fatherly friendliness. When she met
did so because of any erotic emotions. Katzenberger in his offices in the rear building or
The defendant Katzenberger — He denies hav¬ in her flat, she sat often on his lap and, without
ing committed an offense. It is his defense that his a doubt, kissed his lips and cheeks. On these
relations with Frau Seiler were of a purely friendly occasions Katzenberger, as he admitted himself,
nature. The Scheffler family in Guben had likewise responded [to] these caresses by returning the
looked upon his relations with Frau Seiler only kisses, putting his head on her bosom and patting
from his point of view. That he continued his her thighs through her clothes.
relations with Frau Seiler after 1933, 1935, and To assume that the exchange of these caresses,
1938, might be regarded as a wrong {Unrecht] by admitted by both of them, were on Katzenberger’s
the NSDAP. The fact of his doing so, however, part the expression of his fatherly feelings, on
showed that his conscience was clear. Seiler’s part merely the actions caused by daugh¬
terly feelings with a strong emotional accent, as a
Moreover, their meetings became less frequent
natural result of the situation, is contrary to all
after the action against the Jews in 1938. After
experience of daily life. The subterfuge used by
Frau Seiler got married in 1939, the husband often
the defendant in this respect is in the view of the
came in unexpectedly when he, Katzenberger, was
with Frau Seiler in the flat. Never, however, did court simply a crude attempt to disguise as senti¬
ment, free of all sexual lust, these actions with
the husband surprise them in an ambiguous situ¬ their strong sexual bias. In view of the character
ation. In January or February 1940, at the request of the two defendants and basing itself on the
of the husband, he went to the Seiler’s apartment evidence submitted, the court is firmly convinced
twice to help them fill in their tax declarations. that sexual motives were the primary cause for the
The last talk he ever had in the Seiler apartment caresses exchanged by the two defendants.
took place in March 1940. On that occasion Frau Seiler was usually in financial difficulties.
Seiler suggested to him to discontinue his visits Katzenberger availed himself of this fact to make
because of the representations made to her by the her frequent gifts of money, and repeatedly gave
NSDAP, and she gave him a farewell kiss in the her sums from 1 to 10 reichsmarks. In his capacity
presence of her husband. as administrator of the property on which Seiler
He never pursued any plans when being lived and which was owned by the firm he was a
together with Frau Seiler, and he therefore could partner of, Katzenberger often allowed her long
not have taken advantage of wartime conditions delays in paying her rental debts. He often gave
and the blackout. Seiler cigarettes, flowers, and shoes.
 Justice on Trial 315

The defendant Seiler admits that she was

face of the grave accusation made in public.
anxious to remain in Katzenberger’s favor. They The statements made by Hans Zeu.schel, as¬
addressed each other in the second person singular.
sistant inspector of the criminal police, show that
According to the facts established in the trial, the two defendants did not admit from the very
the two defendants offered to their immediate sur¬
beginning the existing sexual situation as being
roundings, and in particular to the community of beyond reproach. The fact that Seiler admitted the
the house of 19 Spittlertorgraben, the impression caresses bestowed on Katzenberger only after hav¬
of having an intimate love affair. ing been earnestly admonished, and the additional
The witnesses Kleylein, Paul and Babette; fact that Katzenberger, when interrogated by the
Maesel, Johann; Heilmann, Johann; and Leibner,
police, confessed only when Seiler’s statements were
Georg observed frequently that Katzenberger and being shown to him, forces the conclusion that they
Seiler waved to each other when Seiler, through both deemed it advisable to keep secret the actions
one of the rear windows of her flat, saw Katzen¬ for which they have been put on trial. This being
berger in his offices. The witnesses’ attention was so, the court is convinced that the two defendants
drawn particularly to the frequent visits paid by made these statements only for reason of oppor¬
Seiler to Katzenberger’s offices after business hours tuneness intending to minimize and render harmle.ss
and on Sundays, as well as to the length of these
a situation which has been established by witnesses’
visits. Everyone in the house came to know even¬ testimony.
tually that Seiler kept asking Katzenberger for Seiler has also admitted that she did not tell
money, and they all became convinced that Katz¬ her husband about the caresses exchanged with
enberger, as the Jewish creditor, exploited sexually Katzenberger prior to her marriage — all she told
the poor financial situation of the German-blooded him was that in the past Katzenberger had helped
woman Seiler. The witness Heilmann, in a conver¬ her a good deal. After getting married in July 1939
sation with the witness Paul Kleylein, expressed his
she gave Katzenberger a “friendly kiss” on the
opinion of the matter to the effect that the Jew cheek in the presence of her husband on only one
was getting a good return for the money he gave occasion, otherwise they avoided kissing each other
Seiler. when the husband was present.
Nor did the two defendants themselves regard In view of the behavior of the defendants
these mutual calls and exchange of caresses as being toward each other, as repeatedly described, the
merely casual happenings of daily life, beyond court has become convinced that the relations be¬
reproach. According to statements made by the tween Seiler and Katzenberger which extended over
witnesses Babette and Paul Kleylein, they observed a period of 10 years were of a purely sexual nature.
Katzenberger to show definite signs of fright when This is the only possible explanation of the intimacy
he saw that they had discovered his visits to Seiler’s of their acquaintance. As there were a large number
flat as late as 1940. The witnesses also observed of circumstances favoring seduction no doubt it is
that during the later period Katzenberger sneaked possible that the defendant Katzenberger main¬
tained continuous sexual intercourse with Seiler.
into Seiler’s flat rather than walking in openly.
In August 1940, while being in the air-raid The court considers as untrue Katzenberger’s state¬
shelter, the defendant Seiler had to put up with ment to the contrary that Seiler did not interest
the following reply given to her by Oestreicher, an him sexually, and the statements made by the de¬
inhabitant of the same house, in the presence of
fendant Seiler in support of Katzenberger’s defense
all other inhabitants: “I’ll pay you back, you Jewish the court considers as incompatible with all prac¬
hussy.’’ Seiler did not do anything to defend herself tical experience. They were obviously made with
against this reproach later on, and all she did was the purpose of saving Katzenberger from his pun¬
to tell Katzenberger of this incident shortly after ishment.
it had happened. Seiler has been unable to give an The court is therefore convinced that Katz¬
even remotely credible explanation why she showed enberger, after the Nuremberg laws had come into
this remarkable restraint in the face of so strong effect, had repeated sexual intercourse with Seiler,
an expression of suspicion. Simply pointing out up to March 1940. It is not possible to say on
that her father, who is over seventy, had advised what days and how often this took place.
her not to take any steps against Oestreicher does The Law for the Protection of German Blood
not make more plausible her restraint shown in the defines extramarital sexual intercourse as any form
316 JUSTICE AND THE LEGAL SYSTEM

of sexual activity apart from the actual cohabitation

he continued his visits to Seiler’s apartment up to
with a member of the opposite sex which, by the spring 1940, the defendant took into account the
method applied in place of actual intercourse, fact that in the absence of more stringent measures
serves to satisfy the sexual instincts of at least one of control his practices could not, at least not very
of the partners. The conduct to which the defen¬ easily, be seen through. The fact that her husband
dants admitted and which in the case of Katzen- had been drafted into the armed forces also helped
berger consisted in drawing Seiler close to him, him in his activities.
kissing her, patting and caressing her thighs over Looked at from this point of view, Katzen-
her clothes, makes it clear that in a crude manner
berger’s conduct is particularly contemptible. To¬
Katzenberger did to Seiler what is popularly called gether with his offense of racial pollution he is
'^Abschmieren" [petting]. It is obvious that such also guilty of an offense under section 4 of the
actions are motivated only by sexual impulses. Even decree against public enemies. It should be noted
if the Jew had only done these so-called '^Ersat- her that the national community is in need of
zhandlungen” [sexual acts in lieu of actual inter¬ increased legal protection from all crimes attempt¬
course] to Seiler, it would have been sufficient to ing to destroy or undermine its inner solidarity.
charge him with racial pollution in the full sense On several occasions since the outbreak of
of the law.
war the defendant Katzenberger sneaked into Seil¬
The court, however, is convinced over and er’s flat after dark. In these cases the defendant
above this that Katzenberger, who admits that he acted by exploiting the measures taken for the
is still capable of having sexual intercourse, had protection in air raids and by making use of the
intercourse with Seiler throughout the duration of black-out. His chances were further improved by
their affair. According to general experiences it is the absence of the bright street lighting which exists
impossible to assume that in the 10 years of his in the street along Spittlertorgraben in peacetime.
tete-a-tetes with Seiler, which often lasted up to an In each case he exploited this fact being fully aware
hour, Katzenberger would have been satisfied with of its significance, thus during his excursions he
the '' Ersatzhandhmgen” which in themselves war¬ instinctively escaped observation by people in the
ranted the application of the law. street.

Ill The visits paid by Katzenberger to Seiler under

the cover of the black-out served at least the pur¬
Thus, the defendant Katzenberger has been pose of keeping relations going. It does not matter
convicted of having had, as a Jew, extramarital whether during these visits extramarital sexual in¬
sexual intercourse with a German citizen of Ger¬ tercourse took place or whether they only conversed
man blood after the Law for the Protection of because the husband was present, as Katzenberger
German Blood came into force, which according claims. The motion to have the husband called as
to section 7 of the law means after 17 September a witness was therefore overruled. The court holds
1935. His actions were guided by a consistent plan the view that the defendant’s actions were delib¬
which was aimed at repetition from the very be¬ erately performed as part of a consistent plan and
ginning. He is therefore guilty of a continuous amount to a crime against the body according to
crime of racial pollution according to sections 2 section 2 of the decree against public enemies. The
and 5, paragraph 11 of the Law for the Protection law of 15 September 1935 was promulgated to
of German Blood and German Honor of 15 Sep¬ protect German blood and German honor. The
tember 1935.
Jew’s racial pollution amounts to a grave attack
A legal analysis of the established facts shows on the purity of German blood, the object of the
that in his polluting activities, the defendant Katz¬ attack being the body of a German woman. The
enberger, moreover, generally exploited the excep¬ general need for protection therefore makes appear
tional conditions arising out of wartime circum¬ as unimportant the behavior of the other partner
stances. Men have largely vanished from towns and in racial pollution who, however, is not liable to
villages because they have been called up or are prosecution. The fact that racial pollution occurred
doing other work for the armed forces which pre¬ at least up to 1939-1940 becomes clear from state¬
vents them from remaining at home and maintain¬ ments made by the witness Zeuschel to whom the
ing order. It was these general conditions and defendant repeatedly and consistently admitted that
wartime changes which the defendant exploited. As up to the end of 1939 and the beginning of 1940
 Justice on Trial 317

she was used to sitting on the Jew’s lap and conduct of the defendant, the court therefore deems
exchanging caresses as described above.
it necessary to pronounce the death sentence as the
Thus, the defendant committed an offense
heaviest punishment provided by section 4 of the
also under section 2 of the decree against public
decree against public enemies. His case must be
enemies.
Judged with special severity, as he had to be sen¬
The personal character of the defendant like¬ tenced in connection with the offense of committing
wise stamps him as a public enemy. The racial racial pollution, under section 2 of the decree
pollution practiced by him through many years against public enemies, the more so, if taking into
grew, by exploiting wartime conditions, into an consideration the defendant’s personality and the
attitude inimical to the nation, into an attack on accumulative nature of his deeds. This is why the
the security of the national community during an defendant is liable to the death penalty which the
emergency. law provides for such cases as the only punishment.
This was why the defendant Katzenberger had Dr. Baur, the medical expert, describes the defen¬
to be sentenced, both on a crime of racial pollution dant as fully responsible.
and of an offense under sections 2 and 4 of the Accordingly, the court has pronounced the
decree against public enemies, the two charges being death sentence. It was also considered necessary to
taken in conjunction according to section 73 of the deprive him of his civil rights for life, as specified
penal code. in sections 32-34 of the penal code. When imposing
In the view of the court the defendant Seiler punishment on the defendant Seiler, her personal
realized that the contact which Katzenberger con¬ character was the first matter to be considered. For
tinuously had with her was of a sexual nature. The many years, Seiler indulged in this contemptible
court has no doubt that Seiler actually had sexual love affair with the Jew Katzenberger. The national
intercourse with Katzenberger. Accordingly the oath regeneration of the German people in 1933 was
given by her as a witness was to her knowledge altogether immaterial to her in her practices, nor
and intention a false one, and she became guilty was she in the least influenced when the Law for
of perjury under sections 154 and 153 of the penal the Protection of German Blood and Honor was
code. promulgated in September 1935. It was, therefore,
nothing but an act of frivolous provocation on her
IV
part to apply for membership in the NSDAP in
In passing sentence the court was guided by 1937, which she obtained.
the following considerations: When by initiating legal proceedings against
The political form of life of the German Katzenberger the German people were to be given
people under national socialism is based on the
satisfaction for the Jew’s polluting activities, the
community. One fundamental factor of the life of defendant Seiler did not pay the slightest heed to
the national community is the racial problem. If a the concerns of State authority or to those of the
Jew commits racial pollution with a German people and decided to protect the Jew.
woman, this amounts to polluting the German race
Taking this over-all situation into considera¬
and, by polluting a German woman, to a grave tion the court considered a sentence of 4 years of
attack on the purity of German blood. The need hard labor as having been deserved by the defen¬
for protection is particularly strong. dant.
Katzenberger practiced pollution for years. He An extenuating circumstance was that the
was well acquainted with the point of view taken defendant, finding herself in an embarrassing sit¬
by patriotic German men and women as regards uation, affirmed her — as she knew — false statement
racial problems and he knew that by his conduct with an oath. Had she spoken the truth she could
the patriotic feelings of the German people were have been prosecuted for adultery, aiding, and
slapped in the face. Neither the National Socialist soliciting. The court therefore reduced the sentence
Revolution of 1933, nor the passing of the Law by half despite her guilt, and imposed as the
for the Protection of German Blood in 1935, neither appropriate sentence 2 years of hard labor. (Sec.
the action against the Jews in 1938, nor the out¬ 157, par. I, No. 1, of the Penal Code.)
break of war in 1939 made him abandon this On account of the lack of honor of which
activity of his. she was convicted, she had to be deprived of her
As the only feasible answer to the frivolous civil rights too. This has been decided for a du-
318 JUSTICE AND THE LEGAL SYSTEM

ration of 2 years. inal law in carrying out their official duties.

The 3 months the defendant Seiler spent in Records of sentences already submitted and
arrest pending trial will be taken into consideration others still to be submitted will prove that this had
in her sentence. in no way been intended.
Costs will be charged to the defendants. This touches on the legal question, whether
[Signed] ROTHAUG official functions resting on the official Reich leg¬
islation which, up to this very moment, is covered
DR. FERBER
in international law by the principle of nationality
DR. HOFFMANN and sovereignty, functions which were carried out
Certified: in public, may be conceived as actions of perse¬
cution on racial, religious, or political grounds and
Nuremberg, 23 March 1942 may be treated as being on the same level as actions
The Registrar of the Office of the Special which were carried out secretly and without control,
Court for the district of the Nuremberg Court and which could be recognized as wrong already
of Appeal with the District Court Nuremberg- by their cruelty and severity by every person con¬
Fuerth cerned as offending against Justice and law.
[Stamp] Here, I wish to convince the court that of¬
fenses of the latter kind, if they ever did happen
District Court [Illegible signature] within the legal sphere, could and should only be
Nuremberg-Fuerth Justizinspektor known to the immediate participants but not to
persons who held positions like the defendant Ro¬
thaug.
[Editor’s Note: The above document was introduced
into evidence before the Nuremberg Military Tri¬
In the concrete reflection on the relationship
bunal. We turn now to the litigation itself:]
to the law of the position of Judges and likewise
Opening Statement on Behalf of prosecutors, it is of decisive importance to elucidate
Defendant Rothaug in public law that the German Judge, under any
regime, had merely to examine whether a law had
DR. KOESSL. May it please the Tribunal. If I been announced in accordance with rules and reg¬
correctly understand the unuttered yet cogent logic ulations, whereas an examination from other points
of the charges listed in the indictment, the effect of view was outside his Jurisdiction. In this context
and example of that legal system to which the it is further necessary to elucidate the significance
prosecution tries to attach the stigma of a criminal and import of the Judge being subject to the law
government institution begins with the Rothaug and the meaning of a sentence in the sense of
case. The evidence against him, out of proportion German public law, especially in relationship to the
considering the entire framework of the indictment, legislative and executive power in an authoritarian
is in contrast to his mere functional position, based state, thus to the governing power.
on his activities as judge and prosecutor. . . . Here we cannot omit to clarify the basic legal
[T]he activity of a Judge at the Special Court principles and corresponding regulations which de¬
or a Reich public prosecutor is limited to the termine this relationship or to prove the practical
application of the law which is based on the official application based on files. Thus, the question of
Reich legislation in the field of criminal law. I shall the Judge’s subjection to the law calls for a clari¬
demonstrate that this Reich legislation in all its fication of the consequences on his task resulting
harshness has, in its purpose, neither lost nor thereof. It necessitates the recognition of the law
limited its character of purely criminal law and as a form of expression of Justice, as part of the
that, on this point, it has not been misinterpreted legal system and as immediate emanation of the
as clearly proved by the literature on the subject ruling state doctrine at any given time, as well as
and the Jurisdiction by the supreme Judicial au¬ the recognition of the Judge’s actual position in
thorities and others. this legal system. Therefore, it is also necessary to
Here must be proved a fact evident in itself, show in a condensed form the general basis and
namely that Judges and prosecutors in the same principle of the legal doctrine which since 1933 was
position as Rothaug were never and in no context decisive for the German Judge in establishing the
intentions of the law in a concrete individual case.
expected to have objects alien to the field of crim¬
 Justice on Trial 319

defense?]
The accusations which have been made in general
or in individual cases concerning Rothaug’s method Introduced into Evidence Against Defendant
Rothaug:
of handling proceedings or which have been con¬
nected with such proceedings become meaningless
or lose in importance if their explanation is tackled
Refusal by a School Child to Give Che
in general from the angle of the correct basic German Salute
procedure regulations or from the available records Decree by the Court of Guardians of
of individual proceedings. This leads, as a matter
21 September 1940
of course, to a basic discussion of the individual
cases which have been particularly stressed by the An 11-year-old girl is conspicuous in school
prosecution, and which lie in the direction of the through continuously refusing the German salute.
She bases this on her religious convictions and cites
prosecution’s main thrust. No one knows better
in explanation some passages from the Bible. In
than the judge the human inadequacy and fallibil¬
ity, because by the very nature of his profession matters concerning the Fuehrer she appears alto¬
he deals with that aspect of life. Thus, he would gether disinterested.
be the last to believe himself immune from human The parents, who also have a 6-year-old
error, least of all at a time of intellectual revolution daughter, approve of this behavior of the child and
and under the effect of the very highest wartime obstinately decline to influence the child to the
pressure. Nevertheless, I beg the Tribunal not to contrary. They also refuse to give the German salute
think me presumptuous if I try to prove that the and point to the passage in the Bible, “Do nothing
sentences pronounced by the Special Court at Nu¬ with an upraised hand for it displeases the Lord.”
They adhere to this in spite of advice by the court
remberg were in keeping with the basic principles
and the director of the school. The mother refuses
of jurisdiction of the Reich courts, and that among
altogether to discuss it with the child. The father
thousands of cases only very rarely one has been
is willing to do so, but says that the child should
successfully contested or otherwise amended. . . .
decide herself. The parents prove themselves to be
adversaries of the National Socialist State also in
[Editor’s Note: In the voluminous evidence
introduced at the Nuremberg trials was included other respects. They possess no swastika flag. They
the “Judges’ Letters’’ issued by the Reich Minister did not enter their child for the Hitler Youth: they
of Justice, Dr. Thierack, sent to all German judges were expelled from the National Socialist Public
and public prosecutors. In Thierack’s words, “these Welfare Association, because they will not support
Judges’ Letters shall mainly contain decisions the collections, despite an adequate income of the
which I deem to be especially worthy of interest, man. Nevertheless they deny being adversaries of
because of their findings or argumentations. By the movement. The juvenile board suggested that
these decisions 1 want to show how better findings the parents should be deprived of the right to bring
could and ought to have been arrived at. . . . The up the two children on account of their attitude.
contents of the letters are confidential; they are The guardianship court refused to carry out
handed to each judge and public prosecutor by the this proposal and merely made an order for su¬
chief against receipt.” pervision by a probation officer.
The first volume of Letters was issued in In the explanation, the court stated that it
October 1942, months after the Katzenberger Case. had not been proved that the parents were adver¬
Nevertheless, they tended to show to the Tribunal saries of the National Socialist movement or that
the context of criminal trials at the time. They they really had fought against it; they were merely
tended to show che exhortations upon judges by “not sympathetic to the movement and not willing
the Reich Minister of Justice. Only the case as
described by the Reich Minister, and only his com¬ It was it.”
to promote stated furthermore that “the parents
ments on that case, are reproduced here. However, are only in so far responsible for their attitude
the case w'e include here was one that had occurred toward the National Socialist movement as they act
in 1940 and may have been familiar to Judge contrary to the relevant penal laws.” The parents
Rothaug. Do you think that this evidence, intro¬ must realize that the children must be brought up
duced by the Prosecution, helps the case against in the National Socialist spirit and that the schools
Judge Rothaug? Or would it be useful to his have instructions to educate them in that spirit. If
320 JUSTICE AND THE LEGAL SYSTEM

the parents are not willing to bring up their children the imparting of respect and awe for the symbols
in that spirit themselves, or if they believe that of the State and the movement at an early stage.
their religious views do not allow them to bring Here, too, the community expects active coopera¬
up their children in that spirit, the least that must tion on the part of the parents. A reserved neutral
be demanded from them is not to oppose National attitude is as harmful as attacking the National
Socialist education at school. Owing to the fact Socialist idea. Thus, indifference to the training of
that the child is well brought up in other respects a patriotic member of the national community
and that— judging from the court’s personal im¬ means neglect of duty on the part of the parents
pression— the parents are “of absolutely reliable and endangers the educational aim for the child,
character,” it may be assumed that in future they even if this is not immediately apparent in each
will not give the school any trouble with respect case. For this reason, it is not enough that in the
to education. present case the parents will not oppose the school
The court of appeal rescinded the decision of in the future; they are supposed to cooperate ac¬
the guardianship court and deprived the parents of tively in their children’s education as a whole. Thus,
the right to look after their children, as they are the responsibility of the parents does not start
not fit to bring them up. where its violation becomes punishable. The child
Opinion of the Reich Minister of Justice is often being endangered if the parents consciously
oppose the educational work of the community.
The judge at the guardianship court in his That was the case here. Who continue to refuse
decision misunderstood the principles of National the German salute on account of erroneous relig¬
Socialist education of youth. ious beliefs, who separates himself from the great
Today, the education of German youth is social work of construction of national socialism
based on the home, the school, and the Hitler without any reason, and who purposely withholds
Youth (law regarding the Hitler Youth of 1 Decem¬ his children from the Hitler Youth and never takes
ber 1936). They have to cooperate and each of advice, of him it can no longer be said that he
them has to carry out that part of the educational merely “does not sympathize” with the movement
task allotted to him by the community. The aim and does not promote it. He attacks it by his
of this joint work consists in educating the young opposition and is its adversary. This is proved by
people in body, in mind, and morally in the Na¬ his convictions and by his inner attitude.
tional Socialist spirit for service to the nation and Thus, the judge of the guardianship court
for the community. ought to have deprived them of the right to look
This aim can be reached only by joint co¬ after their children simply by consideration of the
operation of the home, the school, and the Hitler fact that parents, who openly profess the ideas of
Youth. Any opposition to and any deviation from the “Jehovah’s Witnesses,” are not fit to educate
this education endanger the common aim. An es¬ their children in the spirit of national socialism.
sential part of this education as well as a particular
responsibility have been laid into the hands of the Editor’s Digression: What Was Happening
in the United States
parents. They are united with the child by ties of
blood. The child lives close to them and constantly [Not mentioned at the Nuremberg prosecution
looks to the habits and the example of the parents. of Judge Rothaug were the following developments
To educate means to guide. To guide means to set in the United States at roughly the same time that
an example by your way of life. The child models the Katzenberger Case was developing in Germany.
his way of life on the example of his parents. What In the year 1940 of the decision in the German
the child hears and sees there, especially in early guardianship court, the United States Supreme
youth, it becomes accustomed to by degrees and Court handed down a decision in a case of a 12-
accepts it as a rule of life. Therefore, the educa¬ year-old girl and her 10-year-old brother who were
tional aim of the National Socialist State can only expelled from the public schools of Minersville,
be achieved if the parents, conscientiously and Pennsylvania, for refusing to pledge allegiance to
aware of their responsibility, give their child in the American flag as part of the daily school
thought and deed a model example for its behavior exercise. Their father had to put them into private
in the community life of our nation. To this ed¬ schools, and because of the financial burden, sued
ucation of German man or woman belongs also the .school authorities to enjoin them from contin-
 Justice on Trial 321

uing to exact participation in the flag-salute cere¬ in this war. “If today German soldiers are
mony as a condition of his children’s attendance bleeding to death, then the guilt falls upon
in public school. The family were “Jehovah’s Wit¬ that race which from the very beginning
nesses.’’ Mr. Justice Frankfurter, for the majority strived for Germany’s ruin, and still hopes
of the Court, said that “The ultimate foundation today that the German people will not emerge
of a free society is the binding tie of cohesive
from this struggle.’’ In the case of Katzen¬
sentiment,’’ and that “National unity is the basis berger the court had to pronounce the death
of national security.’’ The Court upheld the right sentence. The physical destruction of the per¬
of the school board to expel the students. Miners- petrator was the only possible atonement.
ville School District v. Gobitis, 310 U.S. 586 (1940). The end (p. 3, col. 1)
The decision was overruled three years later in West
Virginia State Board of Education v. Barnette, 319 With the findings of the verdict the sen¬
U.S. 624 (1943), with Justice Frankfurter dissent¬ tence of the Special Court has become effec¬
tive.
ing.’]
Why the “Stuermer” describes the Katzen¬
Introduced into Evidence Against berger trial in detail (p. 3, col. 2)
Defendant Rot hang:

Newspaper Report of the Katzenberger Trial

The Jew Katzenberger was sentenced to
The Nuremberg newspaper, Der Stuermer, for death as a race defiler and public parasite.
April 2, 1942, contained an article about the Katz¬ This sentence (it is not the first of this kind
enberger trial, entitled “DEATH TO THE RACE in the Reich) was pronounced in Nuremberg
and thus honors the city whose name was
DEFILER,’’ excerpts from which are as follows:
bestowed upon the racial laws of 15 Septem¬
Sentenced to Death! (p. 3, col. 1) ber 1935. For the “Stuermer” however, this
When the court reenters the courtroom sentence signifies a special satisfaction, be¬

to announce the verdict one can already see cause it was the “Stuermer” which, in a
special edition of the year 1938, had de¬
from the earnest looks of the judges that the
manded the death penalty for race defilers.
fate of the Talmudic criminal has been sealed.
As a race defiler and public parasite
Katzenberger is sentenced to death. If today Jewish race defilers are really
The co-defendant Irene S. gets 2 years sentenced to death, then this proves that the
hard labor and loss of civil rights for perjury. “Stuermer” has been a good prophet for
President of the District Court of Appeal R. many years.
points to words in the findings of the verdict,
Extracts From the Testimony of Defendant
which prove to what extent the German judges
are imbued with the tremendous importance Rothaug: Direct Examination
of the racial laws. The president brands the DR. KOESSL (Counsel for defendant Rothaug). It
depravity of the defendant and stamps him has been asserted that you had coupled together
as an evil public parasite. “Racial defilement the Katzenberger and Seiler proceedings in order
is worse than murder! Entire generations will to exclude the Seiler woman as a witness. What
be affected by it into the remotest future!’’ was the situation there?
President of the District Court of Appeal R.
DEFENDANT ROTHAUG. Under the German
in his speech also refers to the guilt of Jewry
Code of Procedure, there are always as many penal
proceedings pending as there are defendants. Under
certain conditions, such penal proceedings can be
’ For further details on Gobitis and Barnette and
tried together for the purpose of uniform trial and
a critical asssessment of the issues raised by these and decision. That is what we call joinder of penal
other cases, see G. Fletcher, Loyalty (Oxford Uni¬ cases. That joinder may be decided by the court,
versity Press, forthcoming 1992). Fletcher’s book is one concerning cases which are pending with it sepa¬
of the rare philosophic accounts of loyalty. rately. But such joinder may be established by the
322 JUSTICE AND THE LEGAL SYSTEM

prosecution itself by one combined indictment. codefendant can no longer appear as a witness.
That was what was done in the Katzenberger-Seiler But if it is decisive that the codefendant should
case. The prosecution, by filing one indictment for appear as the witness, the two cases can be sep¬
both defendants, had already established the joinder arated after all so as to have an opportunity to
prior to the files reaching the court. The joinder examine the codefendant as a witness. But that is
of the two cases was therefore neither due to a file left entirely to the discretion of the court, and the
prepared by me, nor to a file prepared by the defendant has no claim to have that question de¬
court. cided in one definite way.
DR. KOESSL. Would it have been possible for the DR. KOESSL. When several penal cases are com¬
prosecutor to proceed differently? bined, does that mean that all possibility is excluded
DEFENDANT ROTHAUG. Naturally. He could to examine one of the codefendants in the same
have filed separate indictments. The question was proceedings as a witness? I would like you to
merely whether that would have been correct from supplement your previous answer and to tell us
the technical point of procedure. whether it is possible temporarily to separate pro¬
ceedings.
DR. KOESSL. What are the legal provisions on
which a joinder of penal cases is based at the DEFENDANT ROTHAUG. Such temporary sep¬
Special Court? aration is allowed expressly by jurisdiction. There¬
fore, during one proceeding, temporarily a sepa¬
DEFENDANT ROTHAUG. A joinder is based on ration can be ordered. One codefendant can be
article XV, section 2 of the competency order. examined as a witness, and after he has been
DR. KOESSL. When do the conditions exist for a examined the case can be recombined.
joinder, such as demanded by the law?
DR. KOESSL. Did anybody at any time — be it the
DEFENDANT ROTHAUG. Such conditions can prosecutor, the defense counsel, or the defendant —
arise from all sorts of situations. They exist in during the trial make a motion to separate pro¬
particular if one offense developed from another ceedings?
offense, and if the judgment has to be based on DEFENDANT ROTHAUG. Such a motion was
the same facts. That was the case in the Katzen¬ not made either at the trial or outside of it by
berger-Seiler affairs, which we have been discuss¬ anybody. Not even the mere idea of doing that was
ing.
ever mentioned, and the reason was that at that
DR. KOESSL. What was the reason for the pros¬ time nobody regarded the joinder of the two cases
ecutor to connect the two cases? as a defect.
DEFENDANT ROTHAUG. Both cases, as is DR. KOESSL. In the case under discussion, was
proved clearly by the opinion of the court, had to it likely that the chances of the two defendants
be decided on the basis of the same facts. There¬ might be affected by joining their cases?
fore, a joinder was altogether natural and corre¬ DEFENDANT ROTHAUG. As I have stated be¬
sponded to the customary treatment such as was fore, the legal position of the defendants could not
applied in other cases as well. be affected, and their chances were not affected
DR. KOESSL. What was the legal nature of such either. If one had thought that their chances might
joinder? be affected, I think in that case the two defense
counsel would have made a motion to have the
DEFENDANT ROTHAUG. It was purely a meas¬
ure of expediency. two proceedings separated. If one wishes to judge
the situation properly, one has to bear in mind the
DR. KOESSL. Is a defendant entitled to ask for
following; that is to say, one has to think of the
not combining his case with that of another de¬ situation such as it would have been if the Seiler
fendant because in the case of a joinder he loses woman had not been a codefendant but a witness.
evidence?
In that case, she would have made no different
DEFENDANT ROTHAUG. The defendant does statements at the trial than she had made at her
not have such a claim. According to the general interrogation under oath before the investigating
legal doctrine, which existed prior to 1933, a joinder judge, for she made the same statements as a
is admissible even if, as a result of a joinder, one codefendant, and we had to discuss her statements
 Justice on Trial 323

under oath before the investigating judge from defilement is worse than murder, and poisons the
every point of view for the purpose of the verdict. blood for generations. It can only be atoned by
What difference would there have been, as far as
exterminating the offender.”
our judgment was concerned, if she had repeated
Did you make remarks of that kind, or ot a
the same statements at the trial in her capacity as similar nature, or what exactly did happen?
a witness? The real problems of the proceedings
DEFENDANT ROTHAUG. That expression—
would and could not have been affected in any
“The Jews are our misfortune” or “It is the fault
way by that.
of the Jews that the war happened,” or “Those
who have contact with the Jews will perish through
PRESIDING JUDGE BRAND. Were tickets issued them” — those expressions are well known slogans
for admission to the trial? from the Stuermer, which I think appeared in large
letters in every issue of the Stuermer.
DEFENDANT ROTHAUG. Yes, Your Honor.
PRESIDING JUDGE BRAND. Mr. Witness, the
DR. KOESSL. I shall come back to those tickets
only question before you is whether you used, in
later. What importance had to be attributed to the substance, the language which was attributed to
fact that a trial was held in front of such a large you. You may answer that question. We are not
public? concerned with who else used the same language.
DEFENDANT ROTHAUG. Under the German DEFENDANT ROTHAUG. Neither on duty nor
Code of Penal Procedure, the fact that the public in my private life did I use such generalizations,
is admitted to a trial constitutes one guaranty that but the facts which have been discussed here, and
the proceedings will be conducted in an orderly which were mentioned in that issue of the Stuermer,
manner. concerning all that 1 would like to give my view
DR. KOESSL. Did Katzenberger have a defense on one point. That is the question as to war guilt.
counsel? I can remember more or less exactly — and that
DEFENDANT ROTHAUG. Yes, he had. idea is also mentioned in the opinion of the judg¬
ment in the same way in which 1 expressed it at
DR. KOESSL. Was that defense counsel a Jew? the trial. Naturally, it was not the purpose of the
DEFENDANT ROTHAUG. Yes, he was. trial to prove that it was the fault of the Jews that
war had broken out. The point was, however, this.
DR. KOESSL. Did the Seiler woman have a defense
As is known, both defendants tried to make the
counsel, too?
situations which incriminated them appear more
DEFENDANT ROTHAUG. Yes, she had. harmless, as if their relations had been everyday
DR. KOESSL. What sort of a man was the defense matters. And in that connection, I remember that
counsel for Seiler? Was he a National Socialist, or I put it to Katzenberger that, particularly here in
what was he? Nuremberg, he must have known that such relations
were particularly dangerous even if the relations
DEFENDANT ROTHAUG. I knew him. He
had been harmless, because, ever since 1933, he
wasn’t a National Socialist for certain. My im¬ had observed the developments, and then, finally,
pression was that he was entirely uninterested in war had broken out and the Jews were held re¬
politics and devoted to his profession. sponsible for the war, and all these events should
have caused him to be wise and to abandon rela¬
tions which were bound to endanger him, even if
DR. KOESSL. Now, we’re going to examine the
statements by the witness Seiler. The statements by those relations had been only harmless-and if they
had been harmless it would, after all, have been
the witnesses Ferber, Seiler, and Dr. Baur are crit¬
icizing your method of conducting the Katzenberger easy to abandon them. . . .
case. DR. KOESSL. Witness, you came to the expla¬
According to the testimony of the witness nation of the connections where you have made
the so-called speeches to the audience. Will you
Seiler, you addressed the audience and said — “The
Jews are our misfortune. It is the fault of the Jews explain the purpose and the connections for making
that this war happened. Those who have contact these so-called speeches?
with the Jews will perish through them. Racial DEFENDANT ROTHAUG. I base myself on the
324 JUSTICE AND THE LEGAL SYSTEM

fact that the reason for the trials being public the basis of our political and legal foundations.
according to the German rules of procedure was That I also discussed the danger in the manner
that the conscience of law should be strengthened that these things were regarded at that time ac¬
and that the population should be educated in the cording to the legal situation, the danger arising
meaning of the laws. Our sphere dealt with entirely from the mixture of races to coming generations,
new legislation, new in consideration of the basis that I consider to be a fact. What words I used
on which it was founded and of its purposes; for and what thoughts I may have expressed in detail
that reason — and of course one has to consider in discussing these matters, that, of course, I could
that this new legislation provided severe and most no longer tell today. But what I object to is the
severe consequences, and that makes it understand¬ assertion that these may have been statements of
able why I— and that was with approval of all the level of the “Stuermer;” and with absolute
interested offices of the administration of justice — certainty I should like to exclude the possibility
was of the position that it was necessary to bring that in that connection I demanded any physical
as quickly and as effectively as possible this leg¬ destruction. That, according to the law, would not
islation before the population in order to warn have been possible. That, of course, based on the
them because that warning in a certain sense is a fact of the war which went far beyond any racial
justification of the severe sentence, particularly the point of view.
extent of the sentence; and that explains why I had *********

the intention to conduct my trials before the public

DR. KOESSL. The witness Seiler in her direct
and as many people as possible and as broadly as
possible. That also explains why it was not only examination testified that she and the defendant
my intention to describe the bare legal facts but Katzenberger had denied under oath at various
the offenses regardless in what field they were times those relations. Was Katzenberger heard un¬
der oath?
committed and to explain them from the point of
view of the doctrine of the State and from the DEFENDANT ROTHAUG. No, he was not heard
points of view of the legal system and political under oath. That was not admissible under German
point of view. The guiding thought for me was law because German law holds that the defendant
that it was our duty, and at the same time, our had to be entirely free to use all possibilities for
justification before the public, to explain that the his defense. That is considered a certain guarantee
sentence pronounced in any individual case was to aid in finding the truth.
the direct consequence of the legislation provided DR. KOESSL. The witness Seiler also stated in her
therefore. It has to be added that fundamentally direct examination that the judge, Rothaug, used
according to German rules of procedure, the sen¬ the assumption of her guilt as the basis for the
tence can only be based on the entirety of the trial; entire conduct of the trial. The reason for the
that is to say, that all points of view which are
discrimination in her opinion had been that Ro¬
concerned with the penalty or the extent of penalty thaug did not want to hear any answer. Did you
have to be discussed in all details during the trial examine the witness Seiler thoroughly?
because that alone puts the defendant in a position
DEFENDANT ROTHAUG. Of course, she was
to recognize the main points which may be directed
against him; and I also want to emphasize that at examined thoroughly, and I may point out — and
no time were lectures made for their own purpose, that can be found also from reading the opinion —
but that such statements were made in connection that this was a so-called case of circumstantial
with the testimony of the defendant or the witnesses evidence, that a large number of individual situa¬
at the time and at the place where it seemed proper. tions of more or less importance were compiled in
order to make it possible to reconstruct the cir¬
DR. KOESSL. Ferber charges you generally, and
cumstances which were of importance for the eval¬
particularly, in the case Katzenberger. uation; and it was always like that, and it was no
DEFENDANT ROTHAUG. I intended to add, that different in this Katzenberger-Seiler case, that 1
it is therefore quite certain that at that session I discussed with the defendants every phase and every
also .stated my opinion concerning the problem of little detail; not only in order to completely clarify
race defilement on the basis of the doctrine of the any particular action, that of course, was the main
State and on the basis of the legal system, and on purpose; but beyond that it was of importance to
 Justice on Trial 325

establish what the point of view of the defendants death penalty, for instance?
was, and how they described matters; that is the
DEFENDANT ROTHAUG. The core of the ques¬
reason why that matter took a day and a half, and
tion from the very beginning was the following.
in addition to that, after the examination of every
PRESIDING JUDGE BRAND. Let me ask you a
witness who offered something new, again the two
defendants were heard thoroughly concerning the question. Did all of the judges vote for the death
penalty? Answer yes or no.
new situation. At any rate the evidence which was
taken as the basis for the judgment, was discussed DEFENDANT ROTHAUG. Yes, absolutely.
in all possible detail. PRESIDING JUDGE BRAND. Next question.
DR. KOESSL. At that time, among the jurists
DR. KOESSL. Among the judges concerned during around you — but those who were not in direct
the deliberations, was there any doubt about the contact with the case — were there any discussions
about that sentence?
guilt of Katzenberger?
DEFENDANT ROTH AUG. I remember the delib¬ DEFENDANT ROTHAUG. In no way at all. That
erations very well. That conference was peaceful sentence was never criticized in any way or con¬
as could be; for in the course of the trial, which sidered doubtful by jurists who were not connected
lasted a day and a half, the entire occurrence, as with the case which would normally be possible.
far as the facts were concerned based upon the Final Statements of the Defendants
statements of the defendants and on what the
PRESIDING JUDGE BRAND. The record will
witnesses testified to, had developed into such a
clear picture that there could not have been any show that the defendants have already had the
differences of opinion; and, after a very short opportunity to testify at length under oath, and
time — and I remember that very well also — we they are now accorded the privilege, in each in¬
arrived at a decision and actually started to write stance, of making an unsworn statement for the
benefit of the Tribunal.
the judgment down, but considering the importance
of the case, we extended the time for deliberations DEFENDANT ROTHAUG. I served my country
so that the impression should not be given that we throughout my life and in whatever position I was
wanted to pronounce a hasty decision. There were assigned to, in faithfulness, with a pure heart, and
no difficulties at all, the reason being that the facts without malice. Seen from my present position you
themselves were of compelling logic, and that any¬ might consider this wrong, and you could say I
thing else which was the consequence of the facts and all those who surrounded me should have been
just arose from them logically and in the way one more suspicious of developments as they took place.
had to evaluate those things at that time, and of This prognosis in retrospect is just as convincing
course, we could not evaluate it based upon any as it is cheap. Nobody in our position at that time
different philosophy. could be of the opinion that the State which we
served could be accused of being altogether illegal
DR. KOESSL. Which motions were made by the
defense counsel? and that the war that it waged was a war of
aggression, as is demonstrated today to all the
DEFENDANT ROTHAUG. I would like to say world. Therefore, it is no accident and no excuse
with certainty that one of the defense counsel,
that, apart from defending myself against the flood
without being able to tell who it was, made an
of personal defamations which I received from the
attempt in the direction of a lenient sentence, and
circle of my previous friends and assistants, 1 am
he was trying to combat its evaluation as a serious
now anxious to prove to you that both in the
case, but there was no doubt left about the basic
service as a judge and prosecutor, I applied the
facts in the case. That is the way I remember the
laws of my country in the manner in which they
case, and it must have been like that; and that
were intended, to the best of my conscience and
was also manifest by the calm deliberations where
belief. We were guided by the practice of the Reich
no points of argument came in existence.
Supreme Court and went the same way which was
DR. KOESSL. Was any one of the associate judges taken by the remaining 60 to 80 Special Courts in
of a different opinion concerning the extent of the Reich. We were not specialists in crimes against
punishment? Did any one of them vote against the humanity, and no proof has been furnished in any
326 JUSTICE AND THE LEGAL SYSTEM

single case that, in any connection, we had applied and ordered that the Katzenberger case be trans¬
an illegal method. ferred from the criminal divisional court to the
Special Court. The first indictment was withdrawn,
Opinion and Judgment of the Military Tribunal
and another indictment was prepared for the Spe¬
THE DEFENDANT ROTHAUG: cial Court.

The defendant is charged under counts two, The witness Markl states that Rothaug dom¬
three, and four of the indictment. Under count inated the prosecution, especially through his close
friendship with the senior public prosecutor. Dr.
four he is charged with being a member of the
Schroeder, who was the superior of Markl.
Party Leadership Corps. He is not charged with
The indictment before the Special Court was
membership in the SD. The proof as to count four
prepared according to the orders of Rothaug, and
establishes that he was Gau waiter of the Lawyers’
Katzenberger was not charged only with race de¬
League. The Lawyers’ League was a formation of
filement in this new indictment, but there was also
the Party and not a part of the Leadership Corps
an additional charge under the decree against public
as determined by the International Military Tri¬
bunal in the case against Goering, et al. enemies, which made the death sentence permis¬
sible. The new indictment also joined the Seiler
As to counts two and four of the indictment,
woman on a charge of perjury. The effect of joining
from the evidence submitted, the Tribunal finds the
Seiler in the charge against Katzenberger was to
defendant not guilty. The question of the defen¬
preclude her from being a witness for the defendant,
dant’s guilt as to count three of the indictment and such a combination was contrary to established
remains to be determined.
practice. Rothaug at this time told Markl that there
Sometime in the first half of the year 1941
was sufficient proof of sexual intercourse between
the witness Groben issued a warrant of arrest
Seiler and Katzenberger to convince him, and that
against Katzenberger, who was accused of having
he was prepared to condemn Katzenberger to death.
had intimate relations with the photographer Seiler.
Markl informed the Ministry of Justice of Ro-
According to the results of the police inquiry, actual
thaug’s intended procedure against Katzenberger
intercourse had not been proved, and Katzenberger and was told that if Rothaug so desired it, the
denied the charge. Upon Groben’s advice, Katz¬ procedure would be approved.
enberger agreed that he would not move against
Prior to the trial, the defendant Rothaug
the warrant of arrest at that time but would await
called on Dr. Armin Baur, medical counsellor for
the results of further investigation. These further
the Nuremberg Court, as the medical expert for
investigations were very lengthy, although Groben the Katzenberger case. He stated to Baur that he
pressed the public prosecutor for speed. The police,
wanted to pronounce a death sentence and that it
in spite of their efforts, were unable to get further
was, therefore, necessary for the defendant to be
material evidence, and it became apparent that the examined. This examination, Rothaug stated, was
way to clarify the situation was to take the sworn
statement of Seiler, and this was done. a mere formality since Katzenberger “would be
beheaded anyhow.’’ To the doctor’s reproach that
In her sworn statement she said that Katz¬ Katzenberger was old, and it seemed questionable
enberger had known both her and her family for whether he could be charged with race defilement,
many years before she had come to Nuremberg Rothaug stated;
and that his relationship to her was a friendly and
It is sufficient for me that the swine said
fatherly one and denied the charge of sexual in¬
that a German girl had sat upon his lap.
tercourse. The evidence also showed that Katzen¬
berger had given Seiler financial assistance on var¬ The trial itself, as testified to by many wit¬
ious occasions and that he was administrator of nesses, was in the nature of a political demonstra¬
the property where Seiler lived, which was owned tion. High Party officials attended, including Reich
Inspector Oexle. Part of the group of Party officials
by a firm of which he was a partner. Upon Seiler’s
statement, Groben informed Dr. Herz, counsel for appeared in uniform.
Katzenberger, of the result and suggested that it During the proceedings, Rothaug tried with
was the right time to move against the warrant of all his power to encourage the witnesses to make
arrest . incriminating statements against the defendants.
When this was done, Rothaug learned of it Both defendants were hardly heard by the court.
 Justice on Trial 327

Their statements were passed over or disregarded. fact is that nobody but a Jew could have been
During the course of the trial, Rothaug took the tried for racial pollution. To this offense was added
opportunity to give the audience a National So¬ the charge that it was committed by Katzenberger
cialist lecture on the subject of the Jewish question.
through exploiting war conditions and the black¬
The witnesses found great difficulty in giving tes¬ out. This brought the offense under the ordinance
timony because of the way in which the trial was against public enemies and made the offense cap¬
conducted, since Rothaug constantly anticipated the ital. Katzenberger was tried and executed only
evaluation of the facts and gave expression to his because he was a Jew. As stated by Elkar in his
own opinions. testimony, Rothaug achieved the final result by
Because of the way the trial was conducted, interpretations of existing laws as he boasted to
it was apparent that the sentence which would be Elkar he was able to do.
imposed was the death sentence. This Tribunal is not concerned with the legal
After the introduction of evidence was con¬ incontestability under German law of these cases
cluded, a recess was taken, during which time the above discussed. The evidence establishes beyond
prosecutor Markl appeared in the consultation a reasonable doubt that Katzenberger was con¬
room and Rothaug made it clear to him that he demned and executed because he was a Jew; and
expected the prosecution to ask for a death sentence Durka, Struss, and Lopata met the same fate
against Katzenberger and a term in the penitentiary because they were Poles. Their execution was in
for Seiler. Rothaug at this time also gave him conformity with the policy of the Nazi State of
suggestions as to what he should include in his persecution, torture, and extermination of these
arguments. races. The defendant Rothaug was the knowing
The reasons for the verdict were drawn up by and willing instrument in that program of perse¬
Ferber. They were based upon the notes of Rothaug cution and extermination.
as to what should be included. Considerable space From the evidence it is clear that these trials

is given to Katzenberger’s ancestry and the fact lacked the essential elements of legality. In these
that he was of the Mosaic faith, although that fact cases the defendant’s court, in spite of the legal
was admitted by Katzenberger. Such space is also sophistries which he employed, was merely an in¬
given to the relationship between Katzenberger and strument in the program of the leaders of the Nazi
Seiler. That there was no proof of actual sexual State of persecution and extermination. That the
intercourse is clear from the opinion. The proof number the defendant could wipe out within his
seems to have gone little farther than the fact that competency was smaller than the number involved
the defendant Seiler had at times sat upon Katz¬ in the mass persecutions and exterminations by the
enberger’s lap and that he had kissed her, which leaders whom he served, does not mitigate his
facts were also admitted. Many assumptions were contribution to the program of those leaders. His
made in the reasons stated which obviously are not acts were more terrible in that those who might
borne out by the evidence. The court even goes have hoped for last refuge in the institutions of
back to the time prior to the passage of the law justice found these institutions turned against them
for the protection of German Blood and Honor, and a part of the program of terror and oppression.
during which Katzenberger had known Seiler. It The individual cases in which Rothaug applied
draws the conclusion, apparently without evidence, the cruel and discriminatory law against Poles and
that their relationship for a period of approximately Jews cannot be considered in isolation. It is of the
10 years, had always been of a sexual nature. The essence of the charges against him that he partic¬
opinion undertakes to bring the case under the ipated in the national program of racial persecu¬
decision of the Reich Supreme Court that actual tion. It is of the essence of the proof that he
sexual intercourse need not be proved, provided identified himself with this national program and
the acts are sexual in nature. . . . gave himself utterly to its accomplishment. He
We have gone to some extent into the evidence participated in the crime of genocide.
of this case to show the nature of the proceedings Again, in determining the degree of guilt the
and the animus of the defendant Rothaug. One Tribunal has considered the entire record of his
undisputed fact, however, is sufficient to establish activities, not alone under the head of racial per¬
this case as being an act in furtherance of the Nazi secution but in other respects also. Despite prot¬
program to persecute and exterminate Jews. That estations that his judgments were based solely upon
328 JUSTICE AND THE LEGAL SYSTEM

evidence introduced in court, we are firmly con¬ Under any civilized judicial system he could have
vinced that in numberless cases Rothaug’s opinions been impeached and removed from office or con¬
were formed and decisions made, and in many victed of malfeasance in office on account of the
instances publicly or privately announced before scheming malevolence with which he administered
the trial had even commenced and certainly before injustice.
it was concluded. He was in constant contact with Upon the evidence in this case it is the judg¬
his confidential assistant Elkar, a member of the ment of this Tribunal that the defendant Rothaug
criminal SD, who sat with him in weekly confer¬ is guilty under count three of the indictment. In
ences in the chambers of the court. He formed his his case we find no mitigating circumstances; no
opinions from dubious records submitted to him extenuation.
before trial. By his manner and methods he made Defendant OSWALD ROTHAUG, on the
his court an instrumentality of terror and won the count of the indictment on which you have been
fear and hatred of the population. From the evi¬ convicted, this Tribunal sentences you to impris¬
dence of his closest associates as well as his victims, onment for life.
we find that Oswald Rothaug represented in Ger¬ The Marshal will remove this defendant from
many the personification of the secret Nazi intrigue the court and will produce the defendant Rudolf
Oeschey.
and cruelty. He was and is a sadistic and evil man.

Comment: Under What Law Was Judge Rothaug Convicted?

Very little was said in the trial of Judge Oswald Rothaug or the other fifteen defendants
about the legal basis for their indictments. But the legal basis for the jurisdiction of the
International Military Tribunal had been briefed and argued the previous year, in 1946, during
the Nuremberg trial of the major war criminals (including Goering, Hess, von Ribbentrop,
and Alfred Rosenberg). Thus by the time the numerous Nuremberg prosecutions got down to
lesser known German leaders such as Judge Rothaug, the legal issues were considered settled.
The four major victorious Allied Powers, namely the United States, Great Britain, France,
and the Soviet Union, agreed upon and promulgated “Control Council Law No. 10,” which
defined the crimes and punishments for the prosecution of war criminals and other similar
offenders. This Control Council Law was binding upon various judges who sat on the various
Nuremberg courts in the numerous trials that went on from 1946 to 1949. It is unlikely that
any judge would have been selected by any of the major powers to serve on any of these
courts if that judge was known to be opposed to the legal basis for the trials, or if that judge
felt himself (there apparently were no women judges) not bound by Control Council Law No.
10. Nevertheless, it remained open to each judge to satisfy himself that there was a sound
basis for the law. No solider was pointing a gun to the head of any judge and saying that
the judge must obey Control Council Law No. 10.
The attorneys for the major war criminals in the chief trial in 1946 argued strenuously
that Control Council Law No. 10, signed in Berlin on December 20, 1945, was a law that was
passed after all of the events that were charged against the accused defendants. Hence, its
application to the defendants would be ex post facto and violative of the basic principle of
justice that a person should not be punished for an act that was not criminal at the time it
occurred.
Moreover, the attorneys for the defendants pointed out that nothing the defendants did
was illegal under the laws of the Third Reich. In fact, not only did the laws of Germany
support what Hitler and his cronies did, but indeed Hitler and his cronies embodied the spirit
 Justice on Trial 329

of the laws and gave the laws purpose, direction, and meaningfulness.
How did the Nuremberg Tribunal deal with the charge of ex post facto law? The brief
analysis which follows has not previously been made, as far as the authors of this Coursebook
are aware. One of the authors suggested the analysis in a paper he co-authored with two of
his students in 1969,^ but the analysis was sketchy and not fully developed at the time.
The analysis begins with a sharp distinction between “War Crimes” and “Crimes Against
Humanity,” two separately defined crimes in Control Council Law No. 10. War crimes included
“murder, ill treatment or deportation to slave labour” of civilian populations during war,
“murder or ill treatment of prisoners of war,” “killing of hostages,” “wanton destruction of
cities, towns, or villages, or devastation not justified by military necessity.” As to these
violations of the laws and customs of war, there was no legitimate ex post facto argument to
be made. For these are traditional crimes under international law. Trials were held, and people
were prosecuted for such crimes, in the United States Civil War in the nineteenth century and
after World War I, among other instances. The international laws of war apply wherever war
is fought; there is no “territorial” exception.
Because of the historical accident that the major war criminals were tried first at
Nuremberg, and because most of them were guilty of “War Crimes” in the classical sense,®
their attorneys did not try hard to separate the “War Crimes” count from the “Crimes Against
Humanity” count. They tried lumping them both under their ex post facto contention. But
because “War Crimes” were not at all instances of ex post facto law, their argument was
fatally weakened. The net result was that the ex post facto argument was undermined with
respect to all of the counts.
As a result, by the time of the trial against Judge Oswald Rothaug, the judges were
already tired of hearing about ex post facto laws.

Recall, however, that Rothaug was acquitted by the tribunal of the “war crimes” charge.
He was only convicted for violating “Crimes Against Humanity.” Hence, we ought to take a
closer look as to that particular count, which resulted in a life sentence for Rothaug. Was it
an ex post facto law?

“Crimes Against Humanity” is defined in Control Council Law No. 10 as follows:

(c) Crimes Against Humanity. Atrocities and offenses, including but not limited to,
murder, extermination, enslavement, deportation, imprisonment, torture, rape, or
other inhumane acts committed against any civilian population, or persecutions on
political, racial or religious grounds whether or not in violation of the domestic laws
of the country where perpetrated.

In the United States in any given year there are thousands of murders and rapes, and
hundreds of thousands of imprisonments. Are these all subject to the potential jurisdiction of

2 D’Amato, Gould & Woods, War Crimes and Vietnam: The ‘Nuremberg Defense' and the Military Service
Resister, 57 Cal. L. Rev. 1055 (1969), reprinted in 3, The Vietnam War and International Law 407 (R. Falk
ed. 1972).

3 Id. at 1062 (chart of indictments and convictions, showing that 20 defendants out of 22 were convicted of
“War Crimes” if they were also convicted of “Crimes Against Humanity”).
330 JUSTICE AND THE LEGAL SYSTEM

an international military tribunal? As strange as that question sounds with

respect to the
United States today, how much stranger must it have sounded with respect to murders,
rapes,
and imprisonments that occurred prior to the passage of Control Council Law No.
1945? 10, in

In the trial of the major war criminals, the judges partially realized the force of the ex
post facto argument with respect to the count of “Crimes Against Humanity”:
The Tribunal is of the opinion that revolting and horrible as many of these crimes
were, it has not been satisfactorily proved that they were done in execution of, or
in connection with, any [war crime]. The Tribunal therefore cannot make a general
declaration that the acts before 1939 were Crimes Against Humanity within the
meaning of [Control Council Law No. 10], but from the beginning of the war in
1939 War Crimes were committed on a vast scale, which were also Crimes Against
Humanity; and insofar as the inhumane acts charged in the Indictment, and committed
after the beginning of the war, did not constitute War Crimes, they were all committed
in execution of, or in connection with, the aggressive war, and therefore constituted
Crimes against Humanity. [1 International Military Tribunal, Trial of the Major War
Criminals 171 (1947).]

What does this paragraph say? Does it say that “crimes against humanity” suddenly sprang
into being in 1939? It certainly says that no alleged crimes against humanity prior to 1939
will be punished at Nuremberg. (Since Judge Rothaug’s Katzenberger trial occurred in 1942,
that act comes well within the Tribunal’s coverage.)
Does the passage say that anything that isn’t a war crime but was done by a German
after 1939 was committed in connection with the German war effort and hence was a “Crime
Against Humanity?” But, then, who would be left out? Would a print shop that printed
Hitler’s decrees be guilty of a crime? Would a railroad engineer who repaired trains be guilty
of furthering the deportation of Jews to the death camps? Would such an engineer be able
to defend on the basis that he was very poor at his job, and as a result many trains were
delayed?
Of course, those fanciful cases were not the subject of Nuremberg prosecutions. Whatever
the breadth of the definition of “Crimes against Humanity,” it was never seriously suggested
that ordinary German workers should be indicted for assisting in the war effort. Even ordinary
German soldiers below the rank of Sergeant were not among the over 3,000 Germans prosecuted
in the many post-war trials.
Clearly, then, the victorious Allies used their discretion in selecting Germans to be

prosecuted. But “discretion” is a broad term, and “Crimes Against Humanity,” as we have
seen, is broadly and vaguely defined. The case before us is that of Judge Oswald Rothaug.
Why was he indicted? Why was he convicted?
Now that you have read the pertinent materials on his trial, you are able to form a

judgment as to whether Judge Rothaug was, or was not, “guilty” under the charge of “crimes
against humanity.” You are able to form a judgment as to how that charge ought to be
interpreted in Judge Rothaug’s case. Even if it is overly broad in respect of some possible
cases, was it overly broad in respect of Judge Rothaug?
But the answers to the foregoing questions — however difficult they may be to arrive at —
do not end our inquiry. We invite you to consider the following questions.
 Justice on Trial 331

Queslions
1. Judge Rothaug was found guilty of joining Katzenberger and Seiler as defendants, thus
precluding Seiler from being an effective witness for Katzenberger. Was it fair for the Military
Tribunal to try Judge Rothaug along with fifteen other officials, prosecutors, judges, and
administrators?
2. Judge Rothaug was found guilty of stretching the anti-pollution law to cover the facts
of the Katzenberger case. Was Control Council Law No. 10 stretched to cover Judge Rothaug?
3. Judge Rothaug felt that the spirit of the Nazi laws called for an activist judge. Does
the spirit of the new “Crimes Against Humanity” call for overriding our sense that any
criminal ex post facto law is per se unjust?
4. Was Judge Rothaug convicted in part because he administered an evil law, even though
he did not enact that law? Could he defend on the ground that he was only doing his job?
Could the judges of the Military Tribunal defend their judgment against Rothaug on the same
ground?
5. If Judge Rothaug was convicted because of what he did as a judge, was his conviction
the result of what the judges on the Military Court felt bound to do because of their role as
judges?
6. Did justice triumph?
-1
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