The Logic of the Law

-- By AlexanderBernstein - 10 Mar 2017

Sentence First

One summer a hundred years ago, a boy went swimming with his friends in the Harlem River. They were diving off of a wooden springboard that jutted out from the property of a railroad company. As the boy was preparing to dive, a rotting crossarm collapsed, freeing an electrified cable that flung the boy into the river and to his death. The mother sued the railroad, and the trial court promptly threw out the case because the boy’s use of the springboard constituted a trespass.

Cardozo wrote an opinion reversing the lower court’s decision. By the lower court’s logic, a boy swimming in the public water beneath the diving board could recover, but the boy standing atop the board could not. He rejected the distinction as arbitrary:

“We may be permitted to distrust the logic that leads to such conclusions.” Hynes v. N.Y.C.R.R. Co., 231 N.Y. 229, 234 (N.Y. 1921)

As we should. Whether the boy is on the diving board or in the water, the falling electrified cables seem to be the main problem.

I don’t think Cardozo is especially brilliant for coming to this conclusion (though the two courts below him and half of the Court of Appeals did not). Nor do I think he was especially compassionate towards children (Cardozo reaches the opposite conclusion in a similar case Adams v. Bullock, 227 N.Y. 208 (N.Y. 1919)).

What interests me is the statement about distrusting the court’s logic. I wonder: How often do we begin with our conclusions? One intuitively knows that it isn’t okay to let electrified wires fall on children. More to the point, I know that that boy’s mother should be able to recover, and the legal rules one way or the other should conform to that premise. I suspect Cardozo thought the same thing, mostly because he says so: the conclusion determines whether the logic can be trusted.

From this statement, one may deduce that all judicial opinion writing is a charade, a rationalization concocted after the real and instantaneous thinking has already occurred, after the mind has already been made up. Cardozo purports to base his opinion on, “considerations of analogy, of convenience, of policy, and of justice.” In other words, on none of these things in particular. Maybe his conclusions, and our own conclusions, come from a more personal place. Maybe it is in a crucible of our experiences, desires, prejudices, and morality that our conclusions are forged, and our logical justifications are ornamentation.

Many of my classmates, who have reached a similar conclusion, say that this is bullshit. Why should judges be able to foist their personal beliefs, often ignorant and pernicious, on the whole of the public? Many see the Supreme Court of the United States as a political mechanism like any other, and anyone who has read Bush v. Gore knows that this argument is not entirely without merit.

Verdict Afterwards

But I believe that starting with conclusions is not such a bad idea even in the most logical of settings. Take the following algebraic “proof” that two equals one:

Let a = b

a^2 = ab

a^2 – b^2 = ab – b^2

(a – b)(a + b) = b(a – b)

a + b = b

b + b = b

2b = b

2 = 1

When I first saw this in grade school, I was mystified. I knew that it had to be wrong, and I wasn’t quite smart enough to see why. And while the proof does not prove that two equals one, it does demonstrate that the patent falseness of a conclusion can be a faster and equally reliable indicator that the logic is flawed. You knew the proof was wrong as soon as you saw conclusion, and you found the flaw in the logic afterwards, or not at all (if you’re still wondering, dividing by (a – b) is dividing by zero).

Judicial opinions bear some resemblance to the proof. Most of the conclusions aren’t as obvious, but some are. I know, as I know that two does not equal one, that public institutions cannot be segregated and equal, that poll taxes do not admit fair access to voting, that criminal defendants cannot have a fair trial without representation. The point being that I know, and I would even venture that we know, that certain conclusions are true without building the logical foundations beneath them.

As such, logic becomes of secondary importance. We don’t need good logic so much as we need good judgment. Because there is such a thing as good judgment and there is such a thing as bad judgment, and the difference between them is everything when it isn’t so obvious that two doesn’t equal one. Stare decisis, statutory interpretation, judicial trends, history and tradition, common ethos, constitutional law, structural relationships—they would tell you that there is nothing especially blameworthy about letting an electrical cable hurl a child into a watery grave. All that actually matters is what happens between two neurons in the mind of a judge, and whether that spark conceives the correct conclusion, before it is steeped in the logic and prolixity of the law.

---

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, AlexanderBernstein
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.