2003 Hugh R. Jones Memorial Lecture

On March 31, 2003, The Fund for Modern Courts and Albany Law School hosted the second annual Judge Hugh R. Jones Memorial Lecture at Albany Law School.  Judith S. Kaye, Chief Judge of the New York Court of Appeals, introduced this year’s speaker, Howard A. Levine, Associate Judge (ret.) of the New York Court of Appeals.

Judge Levine’s lecture, “The Common-law Tradition and its Critics: A Jonesian Response”, argued for an evolutionary versus a revolutionary approach to jurisprudence. Well over 100 people, including: Judge Jones’s son, Thomas Jones; Court of Appeals Judges Carmen Beauchamp Ciparick, Susan Phillips Read, Albert M. Rosenblatt, George Bundy Smith, Richard C. Wesley; and New York State Bar Association President Lorraine Power Tharp, gathered in the Dean Alexander Moot Courtroom to listen to Judge Levine’s speech.

The Honorable Howard A. Levine

The Common-law tradition and its critics: A Jonesian Perspective

Albany Law School, March 31, 2003
Lecture transcript

What a great pleasure just to get together with my beloved former colleagues on the Court of Appeals, and how meaningful for me that this reunion takes place at one of my new homes, in the presence of new colleagues.  I am deeply honored to be asked to participate in a lecture series named after Hugh R. Jones, one of my judicial heroes, whose friendship I treasured.

I was appointed to the Appellate Division during Judge Jones’ tenure on the Court of Appeals, so he became familiar with my work, just as I, of course, closely followed his.  I marveled at how quickly Judge Jones mastered the craft of highest court appellate judging, despite not having had any prior judicial experience.  I though that this was uniquely remarkable, until I saw it duplicated by Judith S. Kaye.

Hugh Jones was not only a great judge, he was a great person, warm, sympathetic and supportive.  I always enjoyed our contacts at the annual Albany County Bar Association Court of Appeals dinners and on my regular visits to the Commission on Judicial Nominations when he chaired that body.  Barbara and I were pleased and flattered at the friendship he and Jean extended to us at various State bar social functions.  What a fabulous person and full partner to Hugh Jean was.  All those who knew her mourned her passing this year.

And when I went on the Court of Appeals, I, like so many other new members of the Court, turned for guidance to Judge Jones’ 1979 Cardozo Lecture at the Bar Association of the City of New York, “Cogitations on Appellate Decision-Making.”  Re-reading Cogitations just now confirmed my initial impression that it contained some of the best descriptions of the qualities of an ideal high court common law judge.  First, the quality of utter neutrality.  Such a judge approaches a case with “no pre-determined destination – with no prior commitment to its outcome,” he said.  Second, the quality of institutional loyalty, always keeping in mind “the best interests of a court and of the public perception of the institution as I understand them.”  Third, the quality of applying “objective rigorous analysis” because, among other things, Judge Jones believed that “it serves further to reduce the risk of result-oriented decision-making.”

Finally, Cogitations expressed Hugh Jones” commitment to the “common-law process of gradual, incremental development of the law through case-by-case evolution and refinement.”  He was convinced from his own judicial experience “that judges lack the competence or clairvoyance to anticipate the implications and ramifications of broad announcements and as well the wisdom to formulate them.”  These thoughts were not novel, as the Judge acknowledged.  However, I have not seen them any better expressed.

Reading Hugh Jones” opinions is equally enlightening on other basic characteristics of the common-law process of judging.  Consciously, I suspect, Jones” writings exemplify the “Grand Style” of decision-making and opinion writing described by Karl Llewellyn in his last work on the judicial process, “The Common-Law Tradition.”

I say consciously because Jones first served under Chief Judge Charles D. Breitel, who publicly expressed his admiration for Llewellyn”s book and acknowledged its influence on his judicial approach.  I would not be surprised if Breitel had steered this new judge to Llewellyn.

In Jones” opinions, one can see how he skillfully used analogical reasoning in carefully examining the fact patterns and weighing the holdings of the precedents.  He then employed the rigorous interpretive analysis he mentioned in Cogitations to identify the underlying principle, standard or purpose best explaining or unifying the precedents at a relatively low level of abstraction or generality.  Then, he applied that narrow generalization to the case at hand to determine what outcome or which of alternative rules of decision best fit with the operative facts of the case and the social realities of the type of dispute.

Finally, again as he stressed in Cogitations, Judge Jones wrote the decision narrowly, focusing on the operative facts to limit the generality of the holding and to instruct bench and bar on its reach.

Judge Jones also followed the common law tradition in statutory construction and constitutional interpretation.  That is, the use of analogical reasoning from prior cases construing the same provision under similar circumstances and the focus on the underlying normative purpose of the provision, much like the search for a unifying principle in the precedents in pure common-law judging.  His style in Constitutional adjudication also employed the common-law methodology, much like his mentor at Harvard Law School, Justice Felix Frankfurter, and Justice John Marshall Harlan.

Rereading Cogitations also brought to mind another important factor in considering the art of judging:  The influence of one”s professional or personal experience before becoming a judge.  In Cogitations, Jones reflected upon what he learned from a highly successful career as a practicing attorney ” a counselor at law ” bringing to the court and the conference table his knowledge of the impact of decisions upon the practical aspects of the practice of law.  He stressed how imperative clarity and precision in judicial writings were to serving the needs of the practicing bar.  Indeed, he crafted his opinions in a way specifically to serve that purpose.

Of course, the beauty of a collegial appellate court is that its diversity permits all the judges to benefit from the life and professional experiences of each of its members.

My most influential prior professional experiences were those as a prosecutor and then as a family court judge during the 1960″s and 1970″s.  Those were years of tremendous social turmoil as well as rapid changes in the law.  Thanks to Albany Law Professor Peter Preiser”s work in authoring the 1968 Preliminary Report of Governor Rockefeller”s Special Committee on Criminal Offenders, which he served as its Executive Director, I learned of the concept of anomie-public unrest caused by the widespread perception that society”s norms are not being enforced.  During that era, I also became sensitive to the converse of anomie ” it”s flip-side, if you will, that is, societal unrest attributable to the view that the laws are either unjust, or unjustly enforced.

Both forms of social unrest were widespread in those years.  Youth saw injustice in the Selective Service Law under which they or their friends were forced into military service in an unjust war in Vietnam.  Young African-Americans perceived injustice in the pathetically slow implementation of Brown v. Board of Education, and in the failures to achieve other social reforms through the passive resistance strategy of the first generation of leaders of the Civil Rights Movement.

On the other hand, much of conservative America was outraged by a spate of Supreme Court decisions, starting with the Constitutionalization of state criminal procedure law under which the exclusionary rule was applied to searches and seizures, right to counsel, confessions and suspect identifications in state prosecutions.  Salt was rubbed into the wounds by the school prayer cases and Roe v. Wade.  It did not help matters that dissents in some of those cases, notably by Justices Harlan and Byron White, demonstrated the majority”s poor craftsmanship and the lack of support for its results in existing legal sources.

While the militancy of social turmoil of that era has surely subsided, the aftermath has been a profound skepticism concerning the capacity of appellate judges to adhere to the Rule of Law model Hugh Jones subscribed to, of neutrality and objectivity and of shunning result-oriented decision-making.  To be sure, skepticism concerning the judicial process in America has existing for at least a century.  It was the dominant theme of Oliver Wendell Holmes” 1897 lecture, The Path of the Law.  And certainly there was wide spread skepticism about the neutrality and objectivity of the Supreme Court from the turn of the 20th century until the mid-30″s in striking state and federal social welfare legislation and regulation of business.  But except for a few of the most extreme voices of the legal realist movement, the criticisms were that the Supreme Court and the early formalists Holmes challenged were deviants from the true common-law tradition.  Today, however, the skeptics see appellate judging as inherently non-neutral and non-objective, and completely indeterminate.

This more comprehensive skepticism has existed in the academic legal community for more than two decades, in one form or another.  However, I attribute the lack of success of those critics” in dominating the legal culture to their failure to offer any credible, systematic alternative theory of adjudication to aid judges who, after all, have to decide cases brought before them to resolve the litigants” dispute and to give some guidance to lawyers advising clients how to avoid similar disputes in the future.

More portentous is the outspoken skepticism now expressed by two hugely influential sitting jurists in disdaining common-law judging, Justice Antonin Scalia and Judge Richard Posner.  Moreover, in contrast to the academic critics each of these jurists has proposed an alternative methodology to the Common Law Tradition.

Justice Scalia was appointed to the Supreme Court in 1986.  His profound skepticism toward the common-law methodology appears in judicial opinions and in two lectures, his Holmes lecture in 1989 at Harvard Law School entitled the Rule of Law as a Law of Rules, and his 1997 Tanner lecture at Princeton, A Matter of Interpretation: Federal Courts and the Law.  He believes that the common-law approach gives judges unbridled discretion to manipulate the relevant authoritative legal materials in order always to impose their own political and policy predilections.  Justice Scalia is convinced that the Common Law method destroys rule of law values and, when applied to issues of statutory and constitutional law, violates separation of powers by permitting judges to frustrate the will of the people as expressed by their elected legislative representatives.

Scalia proposes a concededly formalistic alternative judicial methodology, which he believes will be far more determinate and constraining.  All holdings ” those based on decisional, statutory or constitutional sources ” will be expressed in broader generalizations.  “For when, in writing for the majority of the court, I adopt a general rule and say “this is the basis of our decision,” I not only constrain lower courts, I constrain myself as well.”

As many of you heard brilliantly explained just one week ago in this venue at the program of the New York State Federal Judicial Council on “The Use of Legislative History by State and Federal Courts in New York,” the Scalia formalistic approach to statutory and constitutional issues purportedly limits judicial discretion by applying the overlapping doctrines of textualism and originalism.  That is, the wording of the provision at issue will be read plainly and applied as a rule of general application.  The substance of that rule will be discerned, not by inquiries into legislative purpose or intent, but from the objective meaning of the text itself, that is, what a reasonable person would have understood the words to mean when enacted.  To avoid the literalism that might produce absurd results, Scalia instructs that courts may also examine the text at issue in the overall context of the law within which it was enacted and may also take into account substantive cannons of construction such as the familiar canon that the expression of one matter implies the exclusion of others.

Scalia”s dissertations are brilliantly and bitingly stated and, without delving into their merits, are fun to read.  They have received exhaustive review by legal scholars, most of which has been critical.  Mainly criticisms do not address the merits of Justice Scalia”s methodology as a theory of adjudication likely to fulfill the Rule of Law better than the Common Law Tradition.  I propose to do so now.  First, in the pure common-law case, where all the sources of authority are found in decisional law, the Justice”s formalism does not represent for me any significant advance over the old formalism.  Holmes” famous aphorism in Lochner v. New York, that “general principles do not decide concrete cases” remains a cogent warning against over confidence in the ability of general rules truly to constrain discussion-making.  Modern jurisprudence, in which H.L.A. Hart and Ronald Dworkin agree, teaches that a judge”s discretion is not effectively restricted by general rules, because of the limitations of language and the unforeseeability of future contingencies.  There inevitably are gaps to be filled, ambiguities to be clarified and choices to be made among congruent but conflicting rules.

Textualism and originalism also fail to constrain in their quest for the meaning of textual constitutional or statutory language contemporary with enactment.  Professional historians seldom claim to find definitive final versions of historical events.  Thus, looking to the historical record is not likely to be as constraining as Justice Scalia expects.  Rather, it is likely to serve at best as a resource for interpretive analysis, hardly an improvement on common-law methodology.  Textualist and originalist judges also will still be empowered to use significant and often decisive discretion in selecting the level of abstraction to ascribe to the original meaning of an enactment.

Undoubtedly Justice Scalia and other textualists have taught us all to be more attentive to statutory language and to beware of the pitfalls of over-reliance on legislative history.  This surely is an important contribution during this age of statutes.  But to entirely preclude resort to evidence of the purposes of a statute in interpreting its words is for me the equivalent of throwing out the baby with the bathwater.  As Chief Judge Kaye very persuasively explained in her 1995 Brennen Lecture at New York University Law School, disputes over the meaning of statutes almost always arise out of expressions of legislative will that are either ambiguous, or too general to dictate the result in the particular case at hand.  Thus, judges in those cases are cast back into their common-law methodology to decide the case, and they seek to ascertain the purpose of the legislation, which may indeed be discernable from legislative history, as an aid to discovering the meaning of text at least as useful and reliable as context or canons of construction.

Perhaps the best demonstration of the inadequacies of Scalia”s textualism/originalism is that he willingly accepts and joins in common-law like decisions when original understanding of text is insufficient to support his strongly felt overall Constitutional vision.  This is exemplified in the decisions granting States sovereign immunity from private suits brought to vindicate federal statutory rights, Seminole Tribe v. Florida and Alden v. Maine.  Undeniably, the only specific constitutional treatment of State immunity from suits is the 11th Amendment, which states in the plainest of language that the Federal courts lack jurisdiction over suits against a state “by a citizen of another state or by citizens or subjects of any foreign state.”  One would assume that a textualist would find significant the absence of any references in the 11th Amendment either to suits against a State in its own courts, or Federal suits against a state brought by that State”s own citizens.  A five-Justice majority, which included Justice Scalia, however, found otherwise, and based the holdings that States are immune from all such suits on three grounds.

First, the majority found that Congress had no legislative power to create the right to sue under the limitations implicit in the general text of the 10th Amendment.  This was despite the fact that the majority”s interpretation of the 10th Amendment would have rendered the very next succeeding amendment, namely the 11th, totally unnecessary.  The other grounds were that the structure of the Constitution supported state sovereign immunity, and that sovereign immunity wasenjoyed by the states before the Constitution was adopted, which was left unchanged.

Whether or not one agrees with those favoring or those critical of the State sovereign immunity cases, no one has claimed that the results were either supported or supportable by the original understanding of a controlling text expressed in the Constitution.  The 10th Amendment was not applied by the majority as a specific rule granting sovereign immunity to the States, but as a general principle of Federalism used by the majority for its interpretive purposes.  The same holds true for the majority”s reliance on Constitutional structure.  The majority writing skillfully weaves in concepts of purpose, principle and precedent, typical of the common-law constitutional methodology, to reach the results in these cases, with nary a comment from the court”s leading formalist.

Richard Posner has been a Federal appellate judge since 1981 and is unquestionably one of the most influential of all contemporary American jurists and legal thinkers.  One marvels how a full-time judge of a busy Federal Court of Appeals who, we are told, writes all of his own opinions, could also write and lecture so extensively on so many legal subjects.

I found the clearest expression of his disdain for the common-law tradition in his contribution to the Harvard Law Review symposium on the 100th anniversary of Holmes” lecture on “The Path of the Law.”  Posner urges acceptance of the implications of Holmes” lecture that what we think of as law is nothing more than “a skin that ought to be stripped away to reveal a policy-making apparatus that could be improved if only it were recognized for what it is.”  Thus, law for Posner (and he claims for Holmes) “is merely a stage in human history.  It followed revenge and it will be succeeded at some time in the future by forms of social control that perform the essential functions of law that are not law in any recognizable sense.”

Before this happens, however, Posner suggests that judges should jettison the “needlessly solemn and obfuscatory moralistic and traditionary blather in judicial decision-making and legal thought generally” in favor of an instrumental approach which is purely result oriented.  He argued that “the only sound basis for a legal rule is its social advantage which requires an economic judgment balancing benefits against cost.”  In his book, “Cardozo: A Study in Reputation”, Posner disparages Cardozo”s greatness as a jurist and legal thinker for disregarding or failing to emphasize “the instrumental conception of law” and for Cardozo”s lack of “an incisive framework for, or technique of, policy analysis such as modern economic analysis provides.”

More recently, Judge Posner has expanded on his objective of “eliminating obfustacatory moralist and traditionary blather” in legal discourse in his lectures on the Problematics of Moral and Legal theory.  Problematics represents Posner”s full exposition of a thesis that the stuff of moral philosophy, dealing which such concepts as theories of justice, ethical standards of conduct and political morality, do not furnish a judge any basis for legitimate decision-making.

As one would expect, Posner”s judicial opinions often reflect his beliefs.

In a 1995 article, Professor Lawrence Cunningham compared Cardozo”s and Posner”s decisional approaches to the law of contracts.  After copious analysis of Judge Posner”s commercial decisions, the article concludes that the controlling criterion applied in those writings is whether the result “promotes freedom of contract and the efficient allocation of resources.”  Posner”s judicial writings studiously avoid any reliance on ethical or moral considerations.

Judge Posner did not persuade me that his instrumental, purely policy-based jurisprudence is superior to Jonesian common law judging.  An instrumental approach, deciding each case solely on the basis of the judge”s conception of which result will best contribute to the general welfare, itself presents a fundamental question of political morality, that is, whether litigants are to be respected for their inherent dignity and worth as human beings, each entitled to be treated as an end and not just a means for achieving the good of the State.  Posner”s jurisprudence turns on its head the most basic premise of any legal system in a democracy.  That is, as Professor Jules Coleman vividly put it, that “the judges are there to serve the parties, to do justice between them; they are not there to serve the judge in his policy-making capacity.”  Posnerian emphasis on modern economic analysis as a framework for judicial decision-making itself represents a particular version of political morality.  Under Judge Posner”s view of a good society, the values of free market competition and the maximization of wealth and economic efficiency prevail over other inconsistent moral values.  A judge who happens not to agree with Posner”s moral vision will get scant assistance from his jurisprudence on how to reach and write decisions.

Even if it were possible, I would not eliminate concepts of morality, justice and fairness from the judicial process.  Such values, of course, should not merely be based on the personal moral code of the judge, but rather the historically enduring standards of righteous conduct and principles of justice that reflect the best in our national character.  Indeed, there is a creative role for the judge to play in finding and demonstrating how issues in the concrete situations of legal disputes bear a relationship to important values, and in refining and articulating those values in a way that reinforces them and uses them to add to the coherence of the law.

My judicial heroes have reflected in their judicial and non-judicial writings that law contains an important moral dimension.  Cardozo said, in The Nature of the Judicial Process “that the judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience.”  And Cardozo”s decisions articulate and apply those precepts in ways that continue to inspire.  Thus, fiduciaries, including business partners, are “held to something stricter than the morals of the marketplace.  Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.”  And, as Professor Cunningham demonstrated in his article, Cardozo incorporated in his commercial decisions moral concepts of good faith, fair dealing and fairness in the construction of agreements to meet the parties” reasonable expectations and to avoid placing one party at the mercy of the other.  Another great judge, Aharon Barak, President of the Supreme Court of the State of Israel recently said that “in creating law, we should give expression to the basic values of our legal system.  Those values are the key to constitutional and statutory interpretation.  They are the force behind the common law.  Those values reflect ethical values of morality and justice.”

Closer to home, another great judge, named Hugh R. Jones, a scant five months after taking his seat on the Court of Appeals, relied, in Codling v. Paglia, upon principles of justice as the foundation of the Court”s adoption of the rule of strict liability of the manufacturer to any party injured because of a defective product.  The social reality of modern mass production, marketing and distribution of goods is described in Codling.  The consumer is bombarded with alluring advertisements to buy products, but totally lacks the means to discover defects in them orassess their relative safety.  The Codling opinion analyzes and explains the precedents which incrementally chipped away at the citadel of privity because immunizing the manufacturer would have been “productive of great injustice.”  Judge Jones ruled that the time had come to “lay down a broad principle, eschewing the temptation to devise proliferating exceptions,” and concludes that “from the stand point of justice, as regards the operating aspect of today”s products, responsibility should be laid on the manufacturer.”  The writing is entirely persuasive and so much more rich than pure economic analysis in giving justificatory reasons to impose strict manufacturers” liability in modern America.  It truly is a worthy successor to MacPherson v. Buick, Cardozo”s masterpiece.

Thus, the skepticism on Judges” neutrality, objectivity and consistency remains as a dilemma, but without a viable solution presented by the skeptics.  The dilemma is not merely academic.  If judges are not neutral and are free to impose their own political and policy preferences, then interest groups and other forces vitally interested in politically sensitive issues likely to reach the courts act perfectly rationally in seeking to assure that only those who agree with their policies sit on a high court bench.  And that, of course, is what we see in the confirmation process for Supreme Court nominees and, what may be worse, in the shameful conduct of judicial election campaigns in the States where seats on their highest courts are filled by popular vote.  The potential for disillusion is great.  Important and far-reaching decisions from courts chosen under this premise will be divisive rather than unifying, as one hopes they would be.

The solution for me is both forward and backward-looking, and will come as no surprise.  It is a reinforcement and a renewed commitment to and legitimation of the common law methodology, with the hopes that it will avoid self-inflicted wounds by the judiciary when it”s constraints are ignored and also attract the support of the two other estates of the legal community, practicing and academic lawyers.

I turn first to a non-legal source of support, one which I have not previously seen brought to bear in this debate.  That is the teaching of scholars of the history of ideas.  If appellate judges inevitably must identify and examine values in deciding cases, values which ought somehow to prevail in society independent of the judge”s personal beliefs, the study of the history of ideas, including age-old but evolving concepts of justice, and political morality, of right reason as Cardozo called it, would yield perspectives not only as to where society has been and is, but where it may be going regarding those sets of values.

More specifically, I look to the insights of Isaiah Berlin, one of the great minds of the 20th century, self-described not as a philosopher but as a scholar of intellectual history.  One of his most significant contributions to Western thought was his doctrine of pluralism: that there is no overriding unified field theory of values arranged in some hierarchical order, and that the recurring blind faith in those kinds of closed systems of values created the “ideological storms” which caused bloody disasters over much of human history and particularly of the 20thCentury.  Instead, for Berlin, history demonstrates that many of the values that motivate societies are incommensurable and in conflict.  He gave the simple example of the competing and incommensurable values of liberty and equality.

Berlin recognized that conflicts in values are inevitable in conducting and ordering human affairs, but concluded that “the collisions, if they cannot be avoided, can be softened, claims can be balanced, compromises can be reached; in concrete situations not every claim is of equal force, priorities never final and absolute must be established.”  Of course, he saw that there are times “to take the risk of drastic action, in personal life or in public policy, but we must always be aware, never forget that we may be mistaken.”  So, he said, “we must engage in what are called trade offs; rules, values, principles must yield to each other in varying degrees in specific situations.”

It occurred to me that if Berlinean pluralism is true and I do believe that to be so, it is remarkably well complemented by the common law tradition of judging.  Common law judges develop law by evolution not revolution.  They strive to reach results by accommodating and reconciling competing values.  Judges have to make hard choices, that is unavoidable, but they do so recognizing that they may be mistaken.  So they make law incrementally and not globally.  The common law tradition is a pluralistic methodology especially appropriate for American society, itself the most pluralistic in the world.

Moreover, I am convinced that the methodology embodied in the common law tradition sufficiently satisfies the requirements of the rule of law.  True, the method does not yield absolute determinacy.  Total determinacy was the claim of the late 19th and early 20th century formalists.  Nor would we want such a determinate system of adjudication, even if it were attainable, which it isn”t.  Some indeterminacy is necessary for there to be legal change to conform to changing social realities and needs.  While not fully determinate, the common law tradition yields predictable results.  It does so because the judges and the lawyers interpreting their decisions belong to the same legal culture.  Their habits of thought are alike.  After studying literally hundred upon hundreds of commercial decisions, many from our Court of Appeals, Karl Llewellyn concluded that the work of competent modern appellate courts is “reckonable quite sufficiently for skilled craftsmen to make usable and valuable judgments about likelihoods.”

Furthermore, there are, indeed, constraints upon judges within the Common Law Tradition, both external and internal, which promote neutrality, objectivity and sufficient determinacy to fulfill reasonable Rule of Law expectations.

Let me first discuss the external restraints.  Judicial discretion is cabined by the evidence in the Record on Appeal, the existence of only a finite set of legal sources that are possibly pertinent, and the need to convince sufficient colleagues on the court to achieve a majority favoring the result.

A more vital external force constraining Judges to act with neutrality, objectivity and consistency is the imperative to preserve the public”s confidence in the integrity of the court and the legal system.  Recall that Hugh Jones spoke in his lecture of a judge”s proper concern for the public perception of the court as an institution.  Aharon Barak also stressed the importance of public confidence in the judiciary.  He said “The most important asset the Judge possesses is the public confidence in him.  This is the confidence that judging is done fairly, neutrally, while treating each side equally.  Every Judge should act as though the public confidence in the entire judicial system is dependent on the exercise of his balancing.”

Notice that in discussing the need to preserve public confidence, Barak focused, not on a Court”s avoidance of an unpopular result, but upon acting in a way that enhances the public”s belief in the integrity of the legal system and in the wisdom and fairness of the tribunal.  A court that decides cases as if it was in a popularity contest loses its integrity and eventually its reputation for integrity.  Unpopular results cannot be avoided, but they summon a judge”s best craftsmanship in providing justification from the historical legal sources and the political morality of justice, fairness and right reason.

There are also important internal restraints.  That is, common law judges feel morally and ethically bound by the conventions and customary practices of the common law tradition.

Those constraining conventions and practices include the following:

First, the duty to engage in the objective rigorous analysis Judge Jones described and sincerely believed that, when practiced, “the correct substantive conclusion emerges with much less difficulty.”  I agree.

Second, there are judicial observances that promote neutrality and objectivity.  As Hugh Jones described, Judges feel a duty to come to a case without any predetermined commitment to a particular result.  Objectivity is promoted by the feeling of obligation to fully and fairly consider to competing positions, and to engage in serious introspection to ensure that the values upon which a decision rests have some societal foundation rather than being merely the judge”s own subjective convictions.

Third, the common law tradition imposes upon Judges the obligation to devise and articulate a principled basis for a decision.  That is, the judges must be prepared honestly to give the narrow holding of the case precedential weight in future analogous cases, even when inconsequential equitable considerations may pull the other way.  In contrast to Legislatures, courts will even convert policy considerations into principles having precedential weight.  Two decisions of our Court of Appeals, decided in the Spring of its 2001 term, Hamilton v. Berretta and 532 Madison Avenue Gourmet Foods v. Finlandia Center, perfectly illustrate how the policy issue of scope of duty of care in tort became a matter of principle to guide courts in the future.

Fourth, common law judges are guided also by considerations of coherency.  Judges strive to decide cases in a way that fits within the body of law on the subject.  The decision must not only be consistent with analogous precedent or any applicable legislation, but also be in harmony with the legal landscape.

Fifth, judges are also obligated to consider the likely practical consequences in the application of the holding, by examining what is revealed in this  respect by the evidence in the record, by immersing themselves in the factual scenarios of analogous cases from the past and in reviewing treatises, articles and other legitimate sources on the subject.

Finally on my non exhaustive list of constraining conventions, the common law tradition requires the writing of a decision which clearly articulates its rationale, explains the choices or accommodations made among the competing rules and values, and honestly and with some degree of empathy addresses the arguments of the losing party.  Anyone who has ever sat on an Appellate Court will attest to how much the writing obligation tailors and disciplines the creation of law by judges.  I recall vividly moments at the conference table when the court had reached a tentative disposition of a difficult and complex case, but the consensus reached was expressly contingent on “seeing how it writes”.

The process of judging I have described, of course, is not perfect.  Mistakes will be made.  The social realities may be wrongly perceived.  Unforeseen, embarrassing consequences may occur.  But the commitment to incremental development of the law, to waiting for just the right moment when a broader rule may be articulated and justified as underlying prior narrow rulings, as in Codling v. Paglia, that practice also, I believe, best enables correcting or at least limiting the damage of mistakes.  Cardozo also commented upon the tendency of bad precedents eventually to whither away.  This, I think is also what Lon Fuller and Ronald Dworkin had in mind in citing to Lord Mansfield”s metaphor about the ability of the common law to “work itself pure”.

Well, the foregoing represents my suggested judicial response to the skeptics.  As you can see, my proposal is not particularly imaginative or innovative.  But it does have the advantage of a pedigree of some 800 years of evolution, in which the methodology of the Common Law Tradition is clearly recognizable in centuries-old decisions by English judges.  Surely there is something to say for the benefit of accumulated wisdom.

I will end on a cautionary, and precatory note.  The judiciary alone will not turn back the wave of skepticism spilling over into the political arena of selecting high court judges and punishing them for disfavored decisions.  It is my hope that practicing lawyers and academic lawyers will join the fray.  That without abandoning any of their sincerely-held constructive criticisms and proposals for reforms in the legal system, they will nevertheless agree that we are all part of a collective enterprise in which they play vital roles, to support and enhance this magnificent, always aspirational and never completely realized ideal of the rule of law, and to preserve the viability of a similarly committed judiciary in our society.


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