2002 Hugh R. Jones Memorial Lecture

On March 11, 2002, The Fund for Modern Courts and Albany Law School hosted the first annual Judge Hugh R. Jones Memorial Lecture at Albany Law School.  Judith S. Kaye, Chief Judge of the New York Court of Appeals, introduced the inaugural speaker, Richard C. Wesley, Associate Judge of the New York Court of Appeals.

Judge Wesley’s lecture, Hugh Jones and Modern Courts: The Pursuit of Justice Then and Now, argued against ideological categorization of the appellate decision making process. Well over 100 people, including: Judge Jones’s children and grandchildren; Court of Appeals Judges Carmen Beauchamp Ciparick, Albert M. Rosenblatt, Howard A. Levine and Victoria A. Graffeo; Presiding Justice Anthony M. Cardona of the Appellate Division, Third Department; and New York State Bar Association President Steven C. Krane of Proskauer Rose LLP in Manhattan, gathered in the Dean Alexander Moot Courtroom to listen to Judge Wesley’s speech.

Judge Richard C. Wesley

An Associate Judge of the Court of Appeals, Judge Wesley’s career is marked by public service and efforts to strengthen the courts. After serving in the Assembly, Judge Wesley was elected a Justice of the Supreme Court. Soon thereafter, he was appointed to be the Supervising Judge of the Criminal Courts in the Seventh Judicial District. His tenure as Supervising Judge was marked by innovation and achievement, including instituting a Felony Screening Program to reduce case delays, and developing the JUST program to monitor defendants and provide alternatives to jail. In 1994, Governor Cuomo appointed Judge Wesley to the Appellate Division, Fourth Department, and in 1996 Governor Pataki nominated him to the Court of Appeals.


Hugh Jones and Modern Courts: The Pursuit of Justice Then and Now

The Honorable Richard C. Wesley

Albany Law School, March 11, 2002
Lecture transcript

I begin my talk this afternoon with an expression of gratitude. I am deeply honored that the Fund for Modern Courts and Albany Law School would look to me to deliver the first Hugh R. Jones Memorial lecture. Judge Jones played a significant role in my career as an appellate judge. He chaired Governor Cuomo’s Fourth Department Screening Committee when I was appointed to the Appellate Division and the Judicial Nominating Commission that submitted my name along with six others) to Governor Pataki for the Court of Appeals. All told, I believe I was interviewed by Judge Jones on four occasions (it took three times for the Appellate Division!). In each interview, he was gracious, yet probing; respectful, but direct. Ultimately, we got to know each other outside of the confines of an interview room. I recall one night when former Justice G. Robert Witmer, Sr. assigned my wife and I to attend to the Judge and Jean at the Witmer’s 60th anniversary in October of 1996. That was Kathy Wesley’s first introduction to Judge Jones; by the end of the night, she was in love! Judge Jones had charmed her with his wit, his grace and his gentle good nature.

Hugh Jones was born in New Hartford, the grandson of Welsh immigrants. He lived most of his life in the house in which he was born. Educated at Hamilton College and Harvard Law School, he first practiced law in New York until called to naval service in the Pacific Theater during World War II. Following the war, Jones returned to the Utica area to practice law. He became active in local and State bar matters culminating in his election to the presidency of the State Bar Association in 1971. That same year he was called upon by Governor Rockefeller to serve on the commission that reviewed the events that led to the deadly riot at Attica. In 1972 he was elected to the Court of Appeals with Sol Wachtler and Dominic Gabrielli. Throughout his life he dedicated himself to serving others, as counsel, bar president, college trustee, chancellor of the Diocese of Central New York for the Episcopal church and Court of Appeals Judge. Part of that commitment to the common good found clear expression in his work at Court of Appeals Hall on Eagle Street.

In light of Judge Jones’ dedication to his work as a judge and fully cognizant that this is the first Jones lecture, I think it appropriate to focus on the Judge in his pursuit of justice. In reviewing his work, the Judge’s commitment to the Court and the law is unavoidable. It strikes me that Jones had a keen appreciation of the significance of the Court, how it did its work and its effect on all New Yorkers. What he said (and wrote) about the Court still resonates within our grand courthouse. But there is more. The way the Court works as an institution and as a laboratory for the continued development of the common law has relevance to a more modern theme. The pursuit of justice in the 21st Century has undergone a dramatic and revolutionary shift at the trial court level. Problem-solving courts or outcome-related justice has recast the equation but the underlying process that gave birth to this model has its roots in the values that Hugh R. Jones articulated so well.

On November 28, 1979, Judge Jones delivered the Thirty-Fifth Annual Benjamin N. Cardozo lecture before the Association of the Bar of the City of New York1 Jones’ “Cogitations on Appellate Decision-Making” remains a mainstay for appellate judges — I received my first copy from my former colleague Justice Sam Green on my first day at the Fourth Department. In his Cardozo lecture Jones set out a number of observations about appellate judging. The judge’s task is to follow the law and the persuasion of reason to wherever it may lead. Judges are free to continually explore their view of a case through preparation, oral argument, and the opinion writing process without the pressure of gain or fear of losing status with one’s colleagues. The appellate process for Jones was a pursuit — not of individual achievement but of institutional responsibility — to articulate the law. He noted: “The status of the individual cannot be advanced at the expense of the Court or to the detriment of the sound development

of the law.”2 For Jones, one role of an effective appellate judge was “the submergence of individual image and status to the good of the Court.”3 For him, legal principles would remain long after the identity of their author fades in the mists of time.

Jones understood that individual pride could be a dangerous commodity. No one ever comes to Eagle Street without acquiring a strong sense of self-assurance. However, the necessity of expressing a view contrary to that of the majority of one’s colleagues must be kept in check and reserved for limited applications.

Differences of opinion are common in the conference room. They are the stuff of which a majority is made. The dynamic of disagreement is how our Court (and those that preceded us) ultimately articulates the law. Jones recognized this wonderfully human process and, I am told, was the master of the internal dissent. The Chief Judge has recounted that early on in her work at Albany she came home from a term only to find a dissent from Judge Jones on her desk before she had even begun to assemble the proposed opinion.4 Judge Jones had penned it to give her a chance to rebut his position and therefore draw him into the majority. For Jones, a potential dissent was not a matter of personal pique — it was an opportunity for clarity and unanimity in expressing the law.5

This process continues to thrive today. The dialogue of the conference tests the strengths and weaknesses of a proposed resolution. It challenges the continued application of well- defined legal principles and calls into question the need to articulate new views of the problem at hand. At the same time, differences of opinion have a significant moderating effect in the sweep of a decision — they ensure that the Court goes no further than it needs in resolving the matter.

Of course, there will be times when matters of high principle are at stake and deeply held differences need to be aired — to fail to do so diminishes the competing views.6 A litigant, and those who share that view, sometimes needs to know that the Court has considered their position and that it was persuasive to some.

However, one should not accept the premise that the absence of a dissent “risks impairment of public confidence in the character and independence of the judges.”7 There will always be dissents — their frequency may vary over time but no human institution will ever achieve universal unanimity. However, the absence of a dissent does not infer the absence of careful, honest analysis. The quality of the Court’s work can only be judged by the clarity and persuasiveness of its opinions. For Judge Jones, if the Court did its work and did it well — public confidence would follow. The same is true today.

Some insist on evaluating the Court’s work by focusing only on cases in which there is a dissent. This approach, in my opinion, suffers from a serious diagnostic flaw. It presupposes that unanimous opinions have some monolithic quality to them — that the Court was of one mind throughout the deliberative process without the judges ever seriously questioning the legal reasoning at the core of the decision. Thus, these observers focus on the “controversial” decisions where dissents crop up to take the Court’s intellectual and philosophical temperature. I would suggest that the better measure of our work is in our unanimous expressions of the law. In these decisions the Court speaks as a chorus. The decision represents the common ground of diverse minds. What better expression of the Court’s view could there be?

In his Cardozo lecture, Judge Jones also touched on his understanding of the judicial process — the analysis and explication of legal principles and their application to the resolution of cases. As a student at Harvard Law School, Jones “was imbued with a deep belief in the wisdom of judicial restraint,” yet as a practitioner he hoped for black-letter law pronouncements from courts so that he might be able to guide and advise his clients.8 In his words, “a common-law disciple, I wanted to be a code practitioner.”9 But his work at the Court changed his view and persuaded him “that judges lack the competence or clairvoyance to anticipate the implications and ramifications of broad announcements as well as the wisdom to formulate them. The genius of the common law as I first learned it years ago has very much come alive.”10

The “genius of the common law” — the process by which appellate judges do some of their work is ever present at Eagle Street (I offer nothing up tonight on such hot topics as statutory construction or State and Federal constitutional analysis). Ours is one of the few professions that regularly looks back on the words and analysis of those who came before us to understand the solution to a current problem. But on a few occasions, a judge is given a rare opportunity to plow new ground.

Cardozo captured the task. “It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins. He must then fashion law for the litigants before him. In fashioning it for them, he will be fashioning it for others.”11 The process is, in essence, creative and artistic, as Cardozo noted: “I have grown to see that the process in its highest reaches is not discovery, but creation * * * .”12 Let us then go to the highest reaches of the common law and look back on a decision that reflects its “genius.” As Justice Stewart Pollock noted in his Brennan lecture, “[a]rtists begin with a creative impulse. Judges do not begin at all until someone starts a lawsuit”.13

On August 2, 1967, Christino Paglia was driving his Chrysler Newport on Route 144 just south of Albany when the vehicle suddenly, and without warning, veered across the double solid lines and struck another vehicle driven by Frank Codling. A lawsuit soon followed in which Frank and Maria Codling sought to recover personal injuries, loss of services and medical expenses from Paglia and Chrysler. The Codlings’ theories for recovery against Chrysler were negligence and breach of warranty. After settling with Paglia the case went to the jury which found no negligence on Chrysler’s part but did find for the Codlings on the breach of warranty claim. The Appellate Division affirmed and the case came to Eagle Street on February 7, 1973.14 Hugh R. Jones had been at the Court only one month.

The case was problematic. The jury found no negligence on Chrysler’s part. Frank and Maria Codling had no relationship with either Chrysler or Paglia yet their theory for recovery was contract based.

In an opinion that masterfully invoked the common-law process, Judge Jones argued that the law had come to a precipice. The principle of privity of contract — the necessary nexus between parties to an agreement, bargain or transaction — had gone through a transformation wrought by technological changes and new forces in the market place. Although the law had been clear in determining who could recover for the failure of a product, the “citadel of privity” began to erode with a series of exceptions to the rule through cases like Greenberg v Lorenz (9 N.Y.2d 195); Randy Knitwear v American Cyanamid Co. (11 N.Y.2d 5); Goldberg v Kollsman Instrument Corp. (12 N.Y.2d 432).15 As Cardozo had noted almost half a century earlier, “[l]ittle by little the old doctrine is undermined. Often the encroachments are so gradual that their significance is at first obscured. Finally, we discover that the contour of the landscape has been changed, that the old maps must be cast aside, and the ground charted anew.”16

And that is exactly what Judge Hugh R. Jones did. Writing for the Court he stated “[o]nce one exception has been made, others have followed as appealing fact situations presented instances in which, in language of result, liability has been imposed to avoid injustice and for the protection of the public.”17

Each case is in a way an artifact — an indicia of our daily lives — the organization of our society.18 In 1916, Benjamin Cardozo wrote his famous opinion in MacPherson v Buick Motor Co. 19 In MacPherson , Cardozo solved a privity problem similar to that which confronted Jones in Codling — what is a manufacturer’s duty to someone who buys a vehicle from a dealer and not its manufacturer? Cardozo resolved the dilemma by characterizing the Buick as having the potential for great harm and analogized the case to earlier precedents dealing with injuries arising from dangerous substances — poisons or explosives.20 It made sense that if the Buick could harm its passengers if it were defective, it would be foolish to only protect the immediate buyer — the dealer — and not a subsequent purchaser. “Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do * * *,” wrote Cardozo.21 In 1916, there were only 134,000 motor vehicles in New York.22 An exception to the privity rule would do. The automobile had not transformed life in America yet. By 1973, New Yorkers owned approximately 6.5 million vehicles.23 Cars and other consumer products had become increasingly complex. The manufacturers of those products would become national or in some instances, international engines of commerce, marketing their products through new channels of communication — radio and television. The distance between the manufacturer and the consumer had moved beyond the reach of privity.

By 1973, the rule and its exceptions no longer accurately reflected the diverse and complex economic relationships affecting consumers in New York and across America. Products were also far different from when basic contract principles were sufficient to define the respective responsibilities of manufacturers, users, and third parties like Frank Codling. As Jones noted: “Today as never before the product in the hands of the consumer is often a most sophisticated and even mysterious article.”24

“The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by.”25 For Jones and the Court — the time had come to lay down a broad principle “eschewing the temptation to devise more proliferating exceptions.”26 And with that Judge Jones set forth the law in New York on products liability.27

I must confess that I have read Codling and the products liability test many times in my career as lawyer and Judge. But until I began my preparation for this speech I never appreciated its careful articulation of why a new rule had to emerge. It leads me to think that we appellate judges should spend more time thinking about how we do our work.

For Jones in his pursuit of justice, the genius of the common law was not only in its logic — its careful attention to existing legal principles — but also in its dynamic and irresistible persuasiveness that a rule could ultimately run its course and be replaced by another. But the new rule has roots — its development comes not only from the need to keep the law current to meet the changing demands of an organized society, but also from the theme and variations of prior legal principles and their exceptions that presaged the new rule’s birth. The process is not arbitrary — its legitimacy comes from the rational exploration for solutions to human problems, and it is not without its limits. As the Chief Judge has noted:

“Judicial policy-making cannot be a freewheeling exercise. If appellate adjudication is not a cold, scientific process of affixing precedents to facts found below, neither is it a free-form exercise in imposing a judge’s personal beliefs about what would be a nice result in a particular case. Our government is after all a government of law, and our court is a court of law. Though it must move, the law also must have stability, certainty and predictability so that people will know how to conduct themselves in order to come within the law, and will know what rights they may reasonably expect will be protected or enforced.”28

A decade after Codling , in Bovsun v Sanperi 29 Jones would again use the tools of the judicial process — an awareness of reason, history, custom and sociology — to move the common law forward. He had recommended allowing plaintiffs to recover on their claims for emotional distress caused by witnessing the negligent injury to an immediate family member. The Chief Judge, in her Memorial to Judge Jones, noted that as the then-junior judge, she was the first to speak after his report to the conference. She had recommended denying plaintiffs’ claims. She documented in “fine lawyerly fashion” that the law plainly did not allow recovery. As Chief Judge Kaye recalled, “[a]s politely and kindly as possible, Judge Jones responded that he knew the law didn’t allow it, but why shouldn’t the law be changed? We could do that. He, of course, carried the court.”30

The pursuit of justice through common-law appellate judging had a champion in Hugh R. Jones. In his years at Eagle Street, he and his colleagues (one of whom sits with me) were regularly called upon to declare the law at the “instigation of those interested”31 — people whose lives became entangled in legal controversies from chance encounters or as a result of established business or social relationships. Although all of us seem to agree that many areas of the common law have now largely been enveloped by statutes (nuisance law and commercial paper to name only a few), nonetheless, the process continues today.

It occurs to me, however, that this process does not restrict itself to appellate courts. Although Jones had not come to the Court through the “black shroud” (his term for the trial courts), his words, written in a slightly different context prove my point. In 1971, Hugh Jones became the President of the New York State Bar Association. He came to office at a time of great social and political unrest. The fabric of American life had been rent asunder by America’s involvement in Vietnam, economic decline and the great struggle for civil rights for all Americans regardless of race. Three of our great leaders had been assassinated — many were concerned that our institutions might not withstand the pressure.

In several of his monthly messages to Bar Association members, Jones expressed the view that lawyers had to accept a role in maintaining the legitimacy of our social and political institutions by assuring access for all Americans to justice. He noted, “[l]aw and order and justice are of a piece. There can be no justice without law and order. Today it is equally important to note that there can be no law and order without justice.”32

But access to justice alone was not enough. Jones knew that the law would remain a stabilizing influence only as long as it was effective in its ends. He told his members, “[w]hen any system for the reconciliation of community conflicts or the resolution of individual differences ceases to achieve these ends, or of greater practical significance, when it is seen by the people concerned to be ineffective to do so, it has lost its vitality.”33

Just as the citadel of privity would meet its demise as underlying economic and social forces changed, Jones called upon lawyers to think about how they could meet the needs of Americans during a time of great turmoil. Lawyers answered the call through pro bono work and legal aid offices representing the concerns of the poor, the mentally ill, minorities and others who had not previously had legal representation. But even with these efforts, there was still work to do. Finally, it was time for the courts to look inward; to respond, as Mr. Justice Holmes had said, “to the felt necessities of the time.”34 In language strikingly similar to that of Hugh Jones, the Chief Judge has taken up the task. “A legal system remains viable only if it responds to the present-day needs and concerns of the public. If we expect our legal system to remain vital and strong into the next century, we need advocates of change to think seriously not only about the exquisite nuances of the law but also about the hard reality of how our courts are functioning.”35

In 1993, I was serving as the Supervising Judge of the Criminal Courts in the Seventh Judicial District. Confronted with a growing backlog of criminal cases on our docket, I commissioned a panel of judges, clerks, defense counsel and prosecutors to examine the problem and propose a solution. We discovered that no one had ever looked at the process as a whole from a defendant’s arrest on a felony complaint, through arraignment in a local court and ultimately indictment by a Grand Jury. It became apparent that no formal process for seeking a resolution to a large number of “plea eligible” cases existed. Out of that collaborative effort came Felony Screening. We attempted to make the court user friendly — all court documents given to defendants were rewritten to simple English, or translated into Spanish. Defense counsel were provided relevant material to assess the strength of the People’s case while prosecutors retained the right to remove serious violent offenders from the process. Plea offers were in writing and a full range of services from pretrial assistance to drug counseling were available. The result — the backlog of cases dropped significantly in a short period of time.36

Early on in the life of Felony Screening, my courtroom was visited by a newly-minted Chief Judge. Unannounced, she walked in, sat down and watched the proceedings. Needless to say, everything stopped, but she insisted we continue. After court, she had a million questions — how did we set up Felony Screening; what worked, what didn’t? That was the first time I ever met the Chief — she became an instant advocate and source of encouragement.

Today, our courts are faced with new and daunting challenges. Substance abuse, domestic violence and quality of life crimes have become the focus of efforts by creative jurists across our state who seek to do more than adjudicate responsibility; they seek to address the underlying social conditions at play in the lives of those who come before the court.

Judges across the state have been challenged to step back and ask of themselves “is there a better way to do this?” In an encouraging and uplifting response, many creative and thoughtful jurists have stepped forward to offer unique and exciting suggestions for judicial problem-solving. It is apparent to me that they have, in a way, invoked the judicial process. Judges have come together with court personnel and counsel to examine how the courts worked in the past and how they might become more effective to meet the needs of 21st Century America.37

In recent years, drug offenses have consistently accounted for almost 40% of all felony indictments in New York.38 When I was serving in Supreme Court and trying criminal cases, I was amazed at the number of individuals charged with drug crimes or charged with crimes related to their drug dependency.

My court at that time was process driven — we adjudicated criminal responsibility and ensured that the process was conducted in accordance with the dictates of law. What struck me was that we were not addressing the core issue at play in many defendants’ criminal conduct — their addiction.

One judge who shared this view was John Schwartz, a city court judge in Rochester. Through Johnís leadership and with the assistance of Judge Kaye, the Rochester City Drug Court was created.

Today there are 43 drug courts in New York that supervise non-violent felons through tough drug-treatment programs instead of prison. Defendants are often given the opportunity to avoid additional criminal liability by entering the drug court program and successfully completing one of its rigorous and closely-monitored treatment programs.

The success of these programs has won many converts. A recent survey shows that 77% of all state court judges polled nationally think that drug courts are the most effective model for dealing with drug related offenses and drug abuse.39 District Attorneys are now more willing to participate in screening cases into drug treatment courts, comforted by the knowledge that recidivism rates for those who successfully complete drug court programs are significantly lower than those placed in penal institutions.40 Lawyers, judges and politicians who were initially skeptical, are heartened by the decrease in felony filings as a result of taking addicts off the merry-go-round of dependency and assisting them to better their lives.

Drug courts didn’t materialize out of the ether, ready to do business. Their success is dependent on the collaborative efforts of judges, clerks, defense counsel, prosecutors and treatment providers. Each court has to adapt to the needs of the community it serves. Each has required the participants to fashion solutions within the context of established legal and constitutional limits. Failures or short falls only provide experience and ultimately better solutions.41

A similar approach has been taken in Brooklyn, the Bronx and Buffalo with regard to domestic violence. The domestic violence courts are aimed at a holistic approach to the dirty secret of spousal abuse. The courts fairly and lawfully determine accountability and sanction abusers, while at the same time providing counseling and family services to the abused.

The initial results indicate that the domestic violence parts are having a real impact in the communities they serve. In the first two years of the Brooklyn courtís operation, dismissal rates of felony complaints involving spousal abuse declined almost 60%, while probation violation rates of domestic violence court defendants are nearly half the typical rate.42 The initial results have been so encouraging that this past year the Bronx domestic violence court expanded its scope to integrate before one judge all issues affecting a given family (support, visitation, divorce, criminal charges).

In a similar vein, community courts address quality of life crimes in the neighborhoods they serve in the City of New York. These courts seek to make justice visible and restorative on a local level.

All of these courts provide a unique and authoritative focal point for bringing a cross-doctrinal approach to many important social problems of the new millennium. Because the courts are founded in fairness, their legitimacy remains accepted by accused and accuser alike. They provide a unique opportunity to adjudicate liability fairly and competently, while providing individualized and focused programs directed at those involved.

Just 10 days ago, Fordham hosted a symposium entitled “Problem-Solving Courts: From Adversarial Litigation to Innovative Jurisprudence.” For three days, panels of judges, academics and advocates assembled to discuss what works in the innovative specialized courts and why. It is indeed encouraging to see how quickly this new model for the delivery of justice has spread. Indeed the problem-solving approach has been endorsed by the ABA, the Conference of Chief Justices and the Conference of State Court Administrators.43

In 1966, I was charged with a violation of section 1180(d) of the Vehicle and Traffic Law — speeding in a speed zone. I have vivid memories of my father and I driving to the Livonia Town Court where I appeared in front of the Honorable Anthony Muscato, Town Justice. Tony Muscato lived down the street from my parentsí home; he had known me since birth. He listened to my explanation, accepted my plea of guilty and rendered an appropriate fine. At the conclusion of the proceedings, he told me that if my father had given me the money to pay the fine (he had), I was to pay him back (I would). He further told me that he would be keeping an eye on me “for my own good.” Little did I know that Justice Muscato was engaging in a problem-solving technique of his own.

The models continue to evolve. As the men and women of our state courts continue to question how we might do better, the answers begin to reveal themselves, only to be re-examined and improved as experience dictates. The genius of the common law and the judicial process can be seen in these responses to Hugh Jones’s clarion call in 1972. To do justice — to seek out new models to respond “to the felt necessities of the time.”44 To rationally pursue solutions to people’s problems in light of the demands of an ever-changing world. The process will always be ongoing and ever-striving to improve, for as the Book of Proverbs chapter 4 verse 18 teaches: “but the path of the just is as the shining light, that shineth more and more into the perfect day.” Or as Hugh Jones might note in his beloved Welsh “y mae llwybr y cyfiawn fel golau’r wawr, sy’n cynyddu yn ei lewyrch hyd ganol dydd.”45

Thank you very much.


 

* Associate Judge, New York State Court of Appeals. I wish to acknowledge and thank my law clerk, Tiffany H. Lee, Frances Murray, Court Librarian and Patricia Bucklin, Executive Director, New York State Bar Association for their assistance in preparing this lecture. Special thanks also to old friends James C. Moore and G. Robert Witmer for their help.

1 Hugh R. Jones, Cogitations on Appellate Decision-Making , 34 Rec. Assoc. Bar City of N.Y. 543 (1979).

2 Id. , at 545.

3 Id.

4 See , Judith S. Kaye, In Memoriam of Hon. Hugh R. Jones , 95 N.Y.2d xxi, at xxiii.

5 See Jones, supra note 1, at 550.

6 See id. , at 553.

7 Id. , at 555.

8 Id. , at 547.

9 Id .

10 Id. , at 548.

11 Benjamin N. Cardozo, The Nature of the Judicial Process (1921), reprinted in Selected Writings of Benjamin Nathan Cardozo 107, 113 (Hall ed., 1938).

12 Id. , at 178.

13 Stewart G. Pollack, The Art of Judging , 71 N.Y.U. L. Rev. 591, 593.

14 Codling v Paglia , 32 N.Y.2d 330, 330-336.

15 See id. , at 338.

16 Cardozo, supra note 11, at 182-183.

17 Codling , supra note 14, 32 N.Y.2d, at 338.

18 “Today’s state court dockets comprise the battlefields of first resort in social revolutions of a distinctly modern vintage: whether frozen embryos are marital property to be distributed equitably upon divorce; whether it is a crime to assist a terminally ill patient in committing suicide; whether DNA evidence should be admitted to establish a defendant’s guilt.” Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions , 70 N.Y.U. L. Rev. 1, 4.

19 217 N.Y. 382.

20 See id. at 389-390.

21 Id. , at 391.

22 Robert A. Slayton, Empire Statesman: The Rise and Redemption of Al Smith (2001), at 174.

23 1973 Annual Report of the New York State Department of Motor Vehicles.

24 Codling , supra note 14, 32 N.Y.2d, at 340.

25 Cardozo, supra note 11, at 178.

26 Codling , supra note 14, 32 N.Y.2d, at 339.

27 The Court held that “under a doctrine of strict products liability, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages; provided: (1) that at the time of the occurrence the product is being used (whether by the person injured or damaged or by a third person) for the purpose and in the manner normally intended, (2) that if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger, and (3) that by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages” (Codling , 32 N.Y.2d 330, 342).

28 Judith S. Kaye, The Human Dimension in Appellate Judging , 73 Cornell L. Rev. 1004, 1014.

29 61 N.Y.2d 219.

30 Supra note 4, 95 N.Y.2d, at xxii.

31 Charles D. Breitel, The Lawmakers (1965), reprinted in The Benjamin N. Cardozo Memorial Lectures 1941-1970, Vol 2, at 807.

32 Hugh R. Jones, The President’s Page, N.Y. St. B. J., Vol 44, No. 1, at 3 (January 1972).

33 Hugh R. Jones, The President’s Page, N.Y. St. B. J., Vol 43, No. 5, at 303 (August 1971)

34 Oliver Wendell Holmes, Jr., The Common Law (Little Brown & Co. 1881), at 1.

35 Judith S. Kaye, Changing Courts in Changing Times: The Need for a Fresh Look at How Courts are Run , 48 Hastings L. J. 851, 853 (1997).

36 1993 Report on Monroe County Felony Screening Part Terms II-VII.

37 Judith S. Kaye, Making the Case for Hands-On Courts , Newsweek, October 11, 1999, at 13.

38 Judith S. Kaye, Remarks: Lawyering for a New Age , 67 Fordham L. Rev. 1, 4.

39 See Judith S. Kaye, Problem-Solving Courts, Annual Survey of American Law, New York University School of Law, submitted February 1, 2002, at 12, n 18, citing University of Maryland Survey Research Center, State Judges Survey Report on Survey Methods (Nov. 2001) (unpublished, on file with the Center for Court Innovation).

40 See id ., at 9.

41 See id ., at 5-14.

42 Judith S. Kaye & Susan K. Knipps, Judicial Responses to Domestic Violence: The Case for a Problem Solving Approach , 27 Western St. Univ. L. Rev. 1, 9 (2000).

43 Supra note 39, at 12, n 17 citing American Bar Association, House of Delegates, Daily Journal: 2001 Annual Meeting at Report No. 117 (August 6-7, 2001), available at http://www.abanet.org Conference of Chief Justices, CCJ Resolution 22, and Conference of State Court Administrators, COSCA Resolution 4, In Support of Problem-Solving Courts (August 2000), reprinted in 2 Journal of the Center for Families, Children & the Courts at 2 (2000).

44 Supra , note 34.

45 Many thanks to Thomas G. Watkin of the Cardiff Law School in Wales for the translation and to Mair Lloyd of New Hartford for her guidance in helping me with the pronunciation.

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