Scale versus Ruler: Achieving Greater Justice through Malleable Legal Standards

-- By AbbyCoster - 15 Feb 2012

"Nature versus nurture" was coined by Francis Galton in the 1860s. Since then, debates have waged regarding whether one's heredity or life experiences has a greater impact on his/her behavior. Twin studies, among others, indicate that our biological nature has more significant impact. Though sociology and interaction with others influence on our behavior, we are ultimately, perhaps fatalistically, controlled by our genes. The law lags behind all of these factors in its ability to shape behavior. To cope with this problem, the law should be more adaptable to individual circumstances. Flexible legal standards, rather than steadfast rules, will atone for its weakness as a form of social control, thereby resulting in more justice.

Cohen’s asserts that “legal concepts are supernatural entities, that courts fashion doctrines that fail to square with morality or logic. Concededly, these rigid rules-"transcendental nonsense"-make sense in certain circumstances; yet in others, application of such rules leads to grossly unjust outcomes.

Duty to Rescue

The no-duty rule, excusing bystanders who fail to help someone in need, proves repugnant in some situations. For example, in Pope v. State, a woman took a mother and child into her house, and witnessed the mother beat her newborn to death without interfering. She was acquitted of all criminal charges because she did not fall neatly into one of four legal categories of people responsible for another party. In this case, applying the rule led to a highly logical, and undoubtedly immoral, result.

Convincing rationales, however, weigh in favor of not imposing a duty to act. Firstly, in certain circumstances, acting would harm those that the duty was imposed upon. For example, the law correctly refrains from imposing liability on someone for not jumping in front of a bullet for another. Furthermore, broad imposition of liability would require courts to interfere with inherently personal choices; using the aforementioned Pope case as an example, enforcing a duty would compel bystanders to intervene in parent-child relationships. Finally, in some settings, imposing a broad duty can lead to discrimination. In situations in which there are many bystanders, such as crimes in crowded shopping malls, a duty to rescue would give a prosecutor too much discretion, as there would be no legitimate way to decide which parties to prosecute.

The tension in this legal area is palpable: both imposing a broad duty and refraining from imposing one can have tragic effects. The court's current baseline-that of no duty to rescue-is possibly the best solution, but the court should be elastic and willing to impose a duty when the particular situation merits one. Scenarios demand a case-by-case analysis, which courts evade through a capacious rule.

Personal jurisdiction

In matters of personal jurisdiction, a more flexible approach would also engender fairer outcomes. In Goodyear v. Brown, for example, two boys were killed in an automobile accident in Paris. Their parents, citizens of North Carolina, were barred from bringing suit there based on the ephemeral notion of “minimum contacts.” Goodyear, a multi-billion dollar corporation, has the means to send lawyers anywhere to try a case; a trial in North Carolina would hardly burden the company. Meanwhile, it would be an onus for the plaintiffs to file suit in foreign states or nations. Even if extremely wealthy, they undoubtedly have less financial freedom as the corporation. Furthermore, after losing two sons, requiring the plaintiffs to attend trial(s) far from the potential solace of their home and community could prove an extreme emotional burden.

The Supreme Court could have weighed the relative hardships posed to Goodyear versus those posed to the Browns under the facts. Rather than grounding its decision on an evanescent basis-"minimum contacts"-the court instead could opt for individualized decision-making, the balancing of pertinent facts to reach a more just outcome. The court has drawn strict lines, which, though sensible in some situations, are unfair in others.

Individualized Legal Proceedings will Breed Justice

My sister Caroline was born a year before me. While I was an obedient child, Caroline was my natural antithesis. She was charming and precocious, winning the affection of classmates one day and offending them the next. Unfortunately, her behavior became more erratic over time. Countless mental health professionals and psychotropic pharmaceuticals only marginally dimmed the vicissitudes of Caroline’s personality, which ultimately manifested itself in self-destructive behavior and, most recently, a debilitating narcotics addiction. A Cornell graduate and high school valedictorian, she's clearly someone who knows the illegality-and ensuing repercussions-of forging prescriptions and doctor-shopping. However, the law was no match for Caroline's biology, the bipolar and schizophrenic tendencies that have afflicted her throughout her life. We were raised in a close-knit, loving family; mine and my brothers' mental and physical well-beings are a testament to that. Yet some things are uncontrollable. Nature simply trumps nurture.

Legal entities have contacted my sister. I hope that, if a trial occurs, the court would take her individualized situation into account, rather than issue a harsh mandatory sentence, ardently supported in my home state of Virginia. This addiction is a result of her biology and psychology. The law should heed that reality by treating her more sympathetically than someone without documented mental health problems or a rich doctor forging prescriptions for pure financial gain. Conversely, the law should afford her less leniency than, for example, a severely autistic person. Through individualized decision-making, the law can incorporate forces greater than itself.

Aristotle said "the law is reason free from passion," evidenced through its rigid application of rules. The law should take a more individualized, thereby sensitive, approach. Currently, particularized underlying circumstances aren't considered, but decisions are based on transient principles, "transcendental nonsense." Because the law is a weak form of social control, paling in comparison with biology, social norms, and other forces, it must account for this shortcoming by bending its formal rules to adapt to specific circumstances.

(Eben-as you mentioned in class, I would like to keep editing my work over time.)

Abby, this draft is a substantial structural improvement over the prior draft concerning only the duty to rescue. It's clear about the idea it is pursuing, the proportion of the development to be given to each illustration, and how they should build the reader's understanding of your idea. I think the nature/nurture opening is not very productive for the idea overall, though it has some purpose in relation to the use of your sister's case as an illustration. But moving it might be a good editorial idea, if it needs to remain in at all.

Now we need to deal with some technical legal issues in your illustrations.

1) Retrospective imposition of a duty in cases which result in criminal liability surely raises due process problems, doesn't it? The court in Pope, or any court similarly situated, cannot hold the defendant criminally liable for a failure to intervene or call the police unless that duty has previously existed. This is the same general problem that the Supreme Court dealt with in 1816 in US v. Hudson and Goodman, when it held there are no federal common law criminal offenses.

2) Your discussion of Goodyear v. Brown is misleading. The Browns are attempting to sue in North Carolina a foreign subsidiary of Goodyear, which for these purposes is simply a company in Luxembourg, about an accident occurring in France that was possibly caused by a tire, which was manufactured, sold and used outside the US. Goodyear US is a separate party, and it doesn't contest jurisdiction, so reference to its resources is irrelevant. The North Carolina court says there are sufficient contacts with North Carolina because some of the tires manufactured by the Luxembourg company in Europe have turned up in North Carolina. That's the flexible, standards-based approach to 14th amendment personal-jurisdiction issues created by International Shoe. That's not under dispute either. Everyone agrees that North Carolina would have jurisdiction to adjudicate any dispute arising from the sale or performance of those tires. That would be jurisdiction arising from the contacts with the State. The North Carolina Court had to find that those tires sold into North Carolina were sufficient contacts not for specific jurisdiction over suits related to the contacts, but for general jurisdiction over all claims.

If the North Carolina court is correct on that conclusion, then anyone in the world can sue Goodyear SA Luxembourg, on any claims they may have about anything, in the North Carolina courts, without offending the Due Process Clause, because some of Goodyear SA Luxembourg's tires wound up in North Carolina. That would be an immense decision, with amazing global consequences, and it's got to be wrong. In technical terms, it's wrong because those tires that wound up in North Carolina despite being designed for the European, Turkish or Asian market, don't indicate sustained, "continuous and systematic" contacts that would reasonably cause the company to expect to be suable there.

From the point of view of the Browns, this may be substantive injustice. But to say that it's the result of too rule-like and too little standards-based reasoning doesn't make much sense.

3) The circumstances of a life such as Caroline's will affect how any prosecutor weighs the public interest in prosecuting her. That's a standards-based process. It would also affect how any sentencing authority free to make sentencing decisions would consider the consequences of a conviction. If your point is that mandatory minimums reduce the inherently standards-based problem of sentencing to arithmetic that causes constant injustice, you are strongly supported by judges throughout the US, who privately—and sometimes very publicly—make the same point. A very prosecution-minded but thoughtful federal judge of high integrity in our neighborhood, Judge John Gleeson of the EDNY, just recently sounded the alarm again.

But if standards-based flexible reasoning is appropriate in both charging and sentencing decisions, we come up once again against the question, is it equally appropriate in the decision on criminal liability? Strong reasons, of fairness to defendants above all, motivate us to make the criminal law as rule-focused as possible. If we are acting within the law's literal scope, we can count on the basic principle of fair warning to prevent the state of mind in which we've acted from dragging us within the scope of liability. Whether and what to charge is inherently a discretionary matter, and circumstances will always count in the prosecutor's decision, for many valid reasons. So with the post-conviction decision how to deal with the offender. But should motive determine liability, beyond the requirement of knowledge or intention in the offense? If so, why?

Abby,

I like your thesis in this paper a lot. To me, it reads: the law should be more of an attempt to reflect reality and accomplish just results than an attempt to shape reality with futile, absurd results. Your proposed path (standards over rules) reminds me of Carol Rose's Crystals and Mud article. I think you make your point very well by starting and ending with strong biological points, filled in with concrete non-biological examples.

My recommendation for your paper is to address your thesis more directly, assuming I have accurately recognized your thesis. I think that adding or reshaping a sentence in three places can help make your thesis very directly stated:

1. "it must account for this shortcoming by bending its formal rules to adapt to specific circumstances." - I think it would help to really spell out what you mean by "account for this shortcoming." Do you mean recognize the law's relative weakness and reflect rather than try to guide the reality of human behavior?
2. "Through individualized decision-making, the law can incorporate forces greater than itself." - same comment as above - I think really spelling out what "incorporate forces greater than itself" means would go a long way.
3. in your intro - "Flexible legal standards, rather than steadfast rules, will atone for its weakness as a form of social control, thereby resulting in more justice." It's hard to get too detailed in an intro because people don't have much context yet, but I think having this sentence state your thesis more directly will launch people into the paper with a very clear idea of what you are getting at through your examples.

Good paper! I am not sure whether I agree with your thesis (I think this question is tough, though I have been retreating quite a bit from the rigid formalism I embraced only recently), but I think you make your point well.

-- AlexKonik - 18 Jun 2012

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