New York Law Journal, March 30, 2004
By John Caher
ALBANY – A father of legal realism, Karl Llewellyn liked to joke with his first-year law students that it was his job to strip them of common sense and their notions of justice and fairness so he could “turn human beings into lawyers.”
Stewart F. Hancock Jr. figures it is his role to return law graduates to the human race.
Yesterday, Mr. Hancock, now a practicing lawyer in central New York and visiting professor at Syracuse University College of Law, delivered the third annual Hugh R. Jones Memorial Lecture at Albany Law School.
His speech echoed the sentiments expressed through many Court of Appeals decisions, rejecting the notion that morality, ethics, fair play, common sense – the qualities that make judges human beings – have no role in adjudication.
“It is this human dimension in the law that has compelled common law judges to look for solutions and to ask not whether but how,” Mr. Hancock said. “It is this dimension that enables judges to perceive and understand the need and inspires them to find a way to fill it.”
He pointed to two Court of Appeals decisions: Hymnowitz v. Eli Lilly & Co., 73 NY2d 487 (1989); and Brown v. State of New York, 89 NY2d 172 (1996).
In Hymnowitz, the Court adopted a unique national market share theory of recovery for victims of DES – diethylstilbestrol – a synthetic estrogen product that damaged the children of women who had ingested the drug while pregnant.
Brown recognized for the first time a constitutional tort that enabled black men to recover from the state for the systematic violation of their civil rights. Both, Mr. Hancock said, are examples of “the dread sin of judicial activism.”
And both, he said, were right on the law and simply right.
“Responding to the dictates of common sense, fairness and the human dimension often requires a common law court to be pragmatic and flexible,” Mr. Hancock said. “On occasion – when no remedy can be found in precedent, logic or analogy – finding a way to answer the demands of justice and fairness requires imagination, creativeness and even inventiveness.”
Since its inception three years ago, the Jones Lecture has focused on judicial methodology and principled decision-making on an appellate court.
Hugh Jones, who served on the Court of Appeals from 1972 through 1984, is often credited not only with influencing the high court through his legal reasoning, but also through his approach to jurisprudence. He was a strong advocate of collegial adjudication, whereby judges with different views and life experiences come to a meeting of minds that advances the common law process of incremental evolution of the law.
Previous Jones lecturers were Judge Richard C. Wesley, now of the U.S. Court of Appeals for the Second Circuit, and Judge Howard A. Levine, now a practicing lawyer in Albany.
Mr. Hancock openly parted with the judicial philosophy of Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit in Chicago, a noted legal theorist. Judge Posner has argued that moral philosophy has no legitimate role in adjudication.
“No judges that I know would classify themselves as literalists, positivists, rights theorists, neo-Kantians or for that matter conservatives or liberals,” Mr. Hancock said. “As has been observed, judges who approach decisions as avowed devotees of a particular legal theorist . . . may well find themselves deciding cases to conform to their chosen legal theories rather than accepted principles of analysis and decision-making.”
Mr. Hancock said judges should be driven by one overriding consideration, “fundamental fairness.” That consideration, he said, combines a moral or ethical component with humanity.
“It was these human characteristics of fairness – common sense, ethics and ordinary sense of justice that Karl Llewellyn facetiously told his first-year law students that they must put in ‘temporary amnesia’ so that they could be transformed from human beings into coldly, analytical manipulators of the law,” Mr. Hancock said. The late Mr. Llewellyn was a University of Chicago law professor.
Mr. Hancock said he now tells his third-year students at Syracuse the same thing he told his clerks at the Court of Appeals: “Ask yourself these questions: Will the rule you’re proposing work? Does it make sense? How will it fit into the existing progression of the law? And, will it operate fairly?”
The lecture is sponsored by the Fund for Modern Courts and Albany Law School. Mr. Hancock spoke to to about 350 judges, faculty, law students and attorneys from the area gathered in the Alexander Moot Courtroom. He was introduced by Chief Judge Judith S. Kaye.