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Hugh R. Jones lecture at Albany Law School.

March 31, 2003

When I went on the Court of Appeals, I, like so many other new members of the Court, turned for guidance to Judge Jones's 1979 Cardozo Lecture at the Bar Association of the City of New York, Cogitations on Appellate Decision-Making. (1) Rereading 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. (2) Such a judge approaches a case with "no predetermined destination ... with no prior commitment to its outcome." (3) Second, the quality of institutional loyalty, always keeping in mind "the best interests of the Court and of the public perception of the institution as I understand them." (4) Third, the quality of applying "objective, rigorous analysis" because, among other things, Judge Jones believed that "lilt serves further to reduce the risk of result-oriented decision-making." (5)

Finally, Cogitations expressed Judge Jones's commitment to the common law process of gradual, incremental development of the law "through case-by-case evolution and refinement." (6) 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." (7) These thoughts were not novel, as the Judge acknowledged, (8) However, I have not seen them any better expressed.

Reading Judge Jones's opinions is equally enlightening with respect to other basic characteristics of the common law process of judging. Consciously, I suspect, Judge Jones's 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. (9) I say consciously because Jones served under Chief Judge Charles D. Breitel, (10) who publicly expressed his admiration for Llewellyn's book and acknowledged its influence on his judicial approach. (11) In Jones's opinions, one can see how he skillfully used analogical reasoning in carefully examining the fact patterns and weighing the holdings of the precedents. (12) 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. (13) Then, he applied that narrow generalization to the case at hand to determine what outcome or which of the alternative rules of decision best fit with the operative facts of the case and the social realities of the type of dispute. (14)

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 the bench and bar on its reach. (15)

Judge Jones also followed the common law tradition in statutory construction and constitutional interpretation. (16) 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. (17) His style in Constitutional adjudication was much like his mentor at Harvard Law School, Justice Felix Frankfurter, (18) and that of Justice John Marshall Harlan. (19)

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 (20)--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. (21) He stressed how imperative clarity and precision in judicial writings were to serving the needs of the practicing bar. (22) Indeed, he crafted his opinions in a way specifically to serve that purpose. (23) 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 1960s and 1970s. Those were years of tremendous social turmoil as well as rapid change in the law. Thanks to Albany Law Professor Peter Preiser's work in authoring the 1968 Preliminary Report of the Governor's Special Committee on Criminal Offenders, (24) on which he served as the Executive Director, I learned of the concept of anomie-public unrest caused by the widespread perception that society's norms are not being enforced. (25) 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, (26) 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 procedures under which the exclusionary rule was applied to searches and seizures, right to counsel, confessions and suspect identifications in state prosecutions. (27) Salt was further rubbed into the wounds by the school prayer cases (28) and Roe v. Wade. (29) It did not help matters that dissents in those case--notably by Justices Harlan (30) and Byron White (31)--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 Judge Jones subscribed to--of neutrality and objectivity and of shunning result-oriented decision making. (32) To be sure, skepticism concerning the judicial process in America has existed for at least a century. It was a dominant theme of Oliver Wendell Holmes' 1897 lecture, The Path of the Law. (33) And certainly there was widespread skepticism about the neutrality and objectivity of the Supreme Court from the turn of the 20th century until the mid-1930s in striking state and federal social welfare legislation and regulation of business. (34) 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 criticized were deviants from the true common law tradition. (35) Today, however, the skeptics see appellate judging as inherently non-neutral and non-objective, and completely indeterminate. (36)

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 those critics' success in dominating the legal culture to their failure to offer any credible systematic alternative theory to guide judges who, after all, have to decide cases brought before them to resolve the litigants' disputes and to give some guidance to lawyers advising clients on 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 (37) and Judge Richard Posner. (38) Moreover, in contrast to those 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. (39) 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, (40) and his 1997 Tanner lecture at Princeton, A Matter of Interpretation: Federal Courts and the Law. (41) 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. (42) Justice Scalia is convinced that the common law method destroys rule of law values and violates separation of powers when applied to issues of statutory and constitutional law by permitting judges to frustrate the will of the people as expressed by their elected legislative representatives. (43)

Scalia proposes a concededly formalistic alternative judicial methodology, which he believes will be far more determinate and constraining. (44) All holdings--those based on decisional, statutory or constitutional sources--will be expressed in broader generalizations. (45) "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." (46)

As many of you heard brilliantly described just one week ago in this venue at a program of the New York State Federal Judicial Council on the Use of Legislative History by State and Federal Courts in New York, (47) the Scalia formalistic approach to statutory and constitutional issues purportedly limits judicial discretion by applying the overlapping doctrines of textualism and originalism. (48) That is, the wording of the provision at issue will be read plainly and applied as a rule of general application. (49) 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). (50) 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 take into account substantive cannons of construction such as the familiar canon that the expression of one matter implies the exclusion of others. (51)

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: (52) Most of those 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. 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, (53) that "[g]eneral principles do not decide concrete cases" (54) remains a cogent warning against overconfidence that general rules truly constrain. 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. (55) 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 meaning of textual language contemporary with enactment. Lawyers are notoriously poor historians, and even professional historians seldom claim to find definitive final versions of historical events. (56) The historical record is, thus, subject to even more manipulation to reach desired results than legal sources are for common law judging. (57) Textualist and originalist judges 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. (58)

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. (59) 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, (60) 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. (61) 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 disclosing the meaning of text at least as useful and reliable as context or canons of construction. (62)

Perhaps the best demonstration of the inadequacies of textualism/originalism is that its author 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 state sovereign immunity from suits brought to vindicate federal statutory rights, Seminole Tribe of Florida v. Florida (63) and Alden v. Maine. (64) Undeniably, the only specific constitutional treatment of state immunity from suits is the Eleventh Amendment, which states in the plainest of language that the federal courts lack jurisdiction over suits against a state "by Citizens of another State, or by Citizens or Subjects of any Foreign State." (65) One would assume that a textualist would find significant the absence of any references in the Eleventh Amendment either to suits against a state in its own courts, or federal suits against a state brought by that state's own citizens. (66) The majority, with the full concurrence of Justice Scalia, however, found otherwise, and based their holding 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 Tenth Amendment. (67) This was despite the fact that the majority's interpretation of the Tenth Amendment would have rendered the very next succeeding amendment, namely the Eleventh, totally unnecessary. (68) The other grounds were that the structure of the Constitution supported state sovereign immunity, (69) and that sovereign immunity was enjoyed by the states before the Constitution was adopted and was left unchanged. (70)

Whether or not one agrees with those favoring or the critics of the state sovereign immunity decisions, no one has claimed that the result was either supported or supportable by the original understanding of a controlling textual provision. (71) The Tenth 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. (72) One marvels how a full-time judge sitting on 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. (73)

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' celebrated 1897 lecture on The Path of the Law. (74) 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 policymaking apparatus that could be improved if only it were recognized for what it is." (75) Thus, law for Posner (and he claims for Holmes) (76) "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 but are not law in a recognizable sense." (77)

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" (78) in favor of an instrumental approach which is purely result oriented. (79) "[T]he only sound basis for a legal rule is its social advantage, which requires an economic judgment balancing benefits against costs." (80) In his book, Cardozo: A Study in Reputation, (81) Posner disparages Cardozo's greatness as a jurist and legal thinker for disregarding or failing to emphasize the 'instrumental conception of law' (82) and for Cardozo's lack of "an incisive framework for, or technique of, policy analysis such as modern economic analysis provides." (83)

More recently, Judge Posner has expanded on his objective of "eliminating obfuscatory moralist and traditionary blather" in legal discourse in his lectures on the Problematics of Moral and Legal Theory. (84) Problematics represents Posner's full exposition of a thesis that the stuff of moral philosophy dealing with such concepts as theories of justice, ethical standards of conduct and political morality--do not furnish a judge any basis for legitimate decision making. (85)

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. (86) 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." (87) 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 "[t]he judge is there ... to serve [the parties]--to do justice between them; they are not there to serve the judge in his policy-making capacity." (88) Posnerian emphasis on modern economic analysis as a framework for judicial decision making itself represents a particular vision of political morality. Under Judge Posner's vision of a good society, the values of free market competition and the maximization of wealth and economic efficiency prevail over other inconsistent moral values. (89) A judge who happens not to agree with Posner on his moral vision of a good society will get scant assistance from Posner's jurisprudence on how to reach and write decisions.

Nor would I, if I could, eliminate concepts of morality, justice and fairness from the judicial process. These 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 expressed in their judicial and non-judicial writing 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." (90) 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 market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior." (91) 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. (92) Another great judge, Aharon Barak, President of the Supreme Court of the State of israel recently said that "[i]n 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." (93)

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, (94) upon principles of justice to justify the Court's adoption of the rule of strict liability of the manufacturer to any party injured because of its defective product. (95) The social reality of modern mass production, marketing and distribution of goods is described by Jones. (96) The consumer is bombarded with alluring advertisements to buy products, but totally lacks the means to discover defects in them or assess their relative safety. (97) The Codling opinion analyzes and explains the precedents that incrementally chipped away at the citadel of privity rules, a necessary process because to otherwise immunize the manufacturer would have been "productive of great injustice." (98) Judge Jones ruled that the time had come to "lay down a broad principal, eschewing the temptation to devise more proliferating exceptions," (99) and concluded that "from the standpoint of justice as regards the operating aspect of today's products, responsibility should be laid on the manufacturer." (100) 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, (101) Cardozo's masterpiece.

I am thus not satisfied that either Justice Scalia or Judge Posner has devised theories of adjudication superior to the common law tradition in assuring the predominance of rule of law values constraining judges to act neutrally, objectively, and consistently. So the skepticism of judges' neutrality, objectivity, and constraint has presented us with a dilemma, but not a solution. 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 policy sit on a high court bench. And that, of course, is what we see in the confirmation process for Supreme Court nominees (102) 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. (103) 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 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 its constraints are ignored and 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, and that is the insights furnished in studies 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 (104)--would yield perspectives not only as to where society has been and is, but where it may be going. More specifically, I look to the judgments 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 conflicts over much of human history and particularly the 20th Century. (105) Instead, for Berlin, history demonstrates that many of the values that motivate societies are incommensurable and in conflict. (106) He posed the simple example of the competing and incommensurable values of liberty and equality. (107)

Berlin recognized that conflicts in values are inevitable in conducting and ordering human affairs, but concluded that "the collisions, even 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 ... [P]riorities, never final and absolute, must be established." (108) 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." (109) 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." (110)

It occurred to me that if Berlinean pluralism is true and I do believe that it is so--it is remarkably well complemented by the common law tradition of judging. Common-law judges develop law by evolution, not revolution. (111) They strive to reach results by accommodating and reconciling competing values. Judges have to make hard choice--that is unavoidable but they do so recognizing that they may be mistaken. (112) The common law tradition is a pluralistic methodology especially appropriate for American society, itself the most pluralistic yet stable society 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. That was the claim of the late 19th and early 20th century formalists. Nor would we want such a determinate system of judging, even if it was attainable, which it isn't. Some indeterminacy is necessary for there to be legal change to conform to changing social realities and needs. (113) While not fully determinate, the common law tradition yields predictable results. (114) It does so because the judges and the lawyers interpreting their decisions belong to the same legal culture. 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 craftsman to make usable and valuable judgments about likelihoods." (115)

Furthermore, there are 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. (116)

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 Judge Jones spoke in his lecture of a judge's proper concern for the public perception of the court as an institution. (117) Aharon Barak also stressed the importance of public confidence in the judiciary. (118) He said, "The most important asset the Judge possesses is the public's confidence in him. [T]his is the confidence that judging is done fairly, neutrally, while treating each side equally.... [E]very Judge should act as though the public's confidence in the entire judicial system depended on the exercise of his balancing." (119)

Notice that in discussing the need to preserve public confidence, Barak focused not on the 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. (120) 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, the political morality of justice, and fairness and right reason.

There are also important internal restraints. Common-law judges feel morally and ethically bound by the conventions and customary practices of the common law tradition. (121) Those conventions and practices include the following:

First, the duty to engage in the objective rigorous analysis Judge Jones described and that he sincerely believed that when practiced, "the correct substantive conclusion emerges with less difficulty." (122)

Second, there are observances that promote neutrality and objectivity. As Judge Jones described, judges feel a duty to come to a case without any predetermined commitment to a particular result. (123) Objectivity is promoted by judges feeling obligated to ensure that all competing positions have been fully and fairly considered and to engage in introspection to ensure that the values upon which a decision rests have some foundation in the ethics of society rather than merely their own subjective convictions.

Third, one important convention of 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 apply the holding of the case as a controlling precedent in future analogous cases, even when inconsequential equitable considerations pull the other way. (124) Contrasted with legislatures, courts will even convert policy considerations into principles that have precedential weight. Two decisions of the New York Court of Appeals, decided in the spring of its 2001 term, Hamilton v. Berretta (125) and 532 Madison Avenue Gourmet Foods v. Finlandia Center, (126) perfectly illustrate how the policy issue of the scope of the 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. (127) Judges strive to decide cases in a way that fits within the body of law on a subject. The decision must not only be consistent with analogous precedent or a controlling statute, but also 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. (128)

Finally on my non-exhaustive list of 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 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 molds 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 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 ruling--also, I believe, best enables correcting or at least limiting the damage of mistakes. Cardozo remarked upon the tendency of bad precedents eventually to wither away. (129) This, I think, is 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". (130)

Well, the foregoing represents my suggested judiciary 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 reform of the legal system, they will nevertheless agree that we are all part of a collective enterprise in which they play vital parts, 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.

Justice Scalia that legislative history can be suspect because it is easily manipulable, and its nature has changed from reflecting the legislative process and thus possibly providing insight to legislative intent, to a more deliberate attempt to inform and influence the judiciary).

(1) Hugh R. Jones, Cogitations on Appellate Decision-Making, 34 REC. ASS'N B. CITY OF N.Y. 543 (1979) [hereinafter Cogitations].

(2) See id. at 544 (contrasting the need for a lawyer to pursue a defined goal with responsibly partisan zeal with the requirement for a judge's allegiance to a result "consistent with a proper view of the facts, the prescriptions of statute, the impact of precedential authority, the persuasion of reason and, where applicable, the perception of policy considerations, all subjects, of course, to recognition of constitutional mandate"). (3) See id.

(4) See id. at 545 (recognizing that as a member of New York's court of last resort, his responsibility to the institution of the Court "commands the subordination of my personal interests").

(5) See id. at 547 (observing that the objectivity and rigorousness of the analysis "is critical and usually determinative").

(6) See id. at 546 (stressing the responsibility of developing, "preserving and strengthening the fabric of the law").

(7) Id. at 547-48 (noting, however, that as a practicing attorney he sometimes would have preferred broad announcements over the burden and lack of certainty that can go along with depending on common law decisions: "A common-law disciple, I wanted to be a code practitioner.").

(8) Id. at 547.

(9) KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (Little, Brown and Company 1960). Llewellyn described the "Grand Style of the Common Law" as a gradual and "on-going renovation of doctrine" rather than a dramatic readdressing of issues, tending to be expressed in simple and clean sentence and paragraph structure. Id. at 36-37. "[It involves] the constant questing for better and best law to guide the future, but the better and best law is to be built on and out of what the past can offer; the quest consists in a constant re-examination and reworking of a heritage, that the heritage may yield not only solidarity but comfort for the new day and for the morrow." Id. at 36. Llewellyn contrasted this Grand Style with judicial Formalism, popular in the latter 1800's and early 1900's, which yielded decisions that set forth legal propositions as if the results would be thus commanded. See id. at 5-6, 38. See also Howard A. Levine, Deciding Cases in "The Common Law Tradition": A Productive and Innovative Year for the Court of Appeals in Business and Commercial Litigation, 48 SYRACUSE L. REV. 355, 362 (1998). An additional hallmark of the Grand Style, ably reflected in Judge Jones's opinions, is the identification of the "situation sense" of the case at hand through an identification of operative facts and the relevant social or commercial context in which they transpire. See LLEWELLYN, supra, at 121-24; Levine, supra, at 362-63. This identification of the situation in which the case sits is a further contrast with the Formal style, which tended to avoid recitations of facts or context. See LLEWELLYN, supra, at 38; Levine, supra, at 363.

(10) Judge Jones served on the Court of Appeals from 1972 to 1984. Laura Mansnerus, Hugh R. Jones, 86, Ex-Judge on New York Court of Appeals, N.Y. TIMES, Mar. 6, 2001, at A19. While there, Judge Jones served with Chief Judges Stanley H. Fuld, Charles D. Breitel, and Lawrence H. Cooke. See THE HISTORICAL SOCIETY OF THE COURTS OF THE STATE OF NEW YORK, THERE SHALL BE A COURT OF APPEALS 104-05 (1997), available at, /pg105.htm.

(11) See Charles D. Breitel, The Lawmakers, 65 COLUM. L. REV. 749, 767-68 (1965) (noting that Llewenyn "brilliantly" observed that statutory construction canons offer courts contradictory guidance, using the example that a statute's purpose is to be liberally construed, but that statutes which usurp common law should be interpreted strictly).

(12) Codling v. Paglia, which removed privity as a requirement to holding a manufacturer liable for injuries to any person injured by manufacturer's defective product, is a good example of Judge Jones's careful reasoning and use of facts and precedents. 298 N.E.2d 622 (1973). After a detailed but clear recitation of the relevant facts and causes of action, Judge Jones began his examination of the relevant law with "a thumbnail historical catalogue" of the development of product liability decisions issued by the Court of Appeals. Id. at 624-26. Noting that the "erosion of the citadel of privity" had begun in other jurisdictions and has been greeted with support from the legal community, and rather than create another exception to the rule, it had become time to forgo "rationalizing broken field running" in favor of settling on a general rule. Id. After examining the complex technology available as commonplace consumer items, the difficulties in assessing hazards in these products, and who was in the best position to limit defects in these devices, Judge Jones concludes that for logical, economical, and equitable reasons, the liability for defective products should fall on the manufacturer. Id. at 627-28. To buttress this decision, Judge Jones then surveys the holdings of other States' courts that have held similarly. Id. at 628. After defining the limits and boundaries of the holding, Judge Jones concludes by applying this standard to the facts at hand. Id. at 628-30.

(13) People v. Onofre, which had the effect of ending New York's criminalization of homosexual activity, demonstrates Judge Jones's ability to distill complex issues into a central legal principle. 415 N.E.2d 936 (1980). This case obviously mined deep citadels of religious, moral, and behavioral values. Judge Jones's decision also drew on a wealth of legal precedent concerning privacy and conduct. Id. at 939-40. Skillfully, and with tactful insight, Judge Jones commenced his decision with a clear and concrete legal question: "These appeals ... present a common question--viz., whether the provision of our State's Penal Law that makes consensual sodomy a crime is violative of rights protected by the United States Constitution." Id. at 937. He answers his own question with similar clarity and conciseness: "We hold that it is." Id.

Six years later, in Bowers v. Hardwick, the United States Supreme Court disagreed with Judge Jones, upholding the constitutionality of Georgia's similar sodomy statute. See Bowers v. Hardwick, 478 U.S. 186, 189 (1986). The Bowers Court held that the right to privacy did not extend to homosexual sodomy. Id. at 190. The majority in Bowers dealt almost exclusively with homosexual conduct, although the statute itself did not. Id. at 200 (Blackmun, J., dissenting). Judge Jones recognized that New York's ban on sodomy, like Georgia's, was "broad enough to reach noncommercial, cloistered personal sexual conduct of consenting adults" and thus within the protected right of privacy. See Onofre, 415 N.E.2d at 938. Ultimately, Judge Jones's vision was vindicated in Lawrence v. Texas, which overturned Bowers while striking down Texas's ban on same sex sodomy on right to privacy grounds. See Lawrence v. Texas, 123 S.Ct. 2472, 2484 (2003).

(14) Codling, in addition to demonstrating Judge Jones's careful reasoning (see supra note 12), is an example of Judge Jones's ability to weigh the operative facts of a case in the context of its social and economic realities, what Llewellyn might characterize as its "situation sense". Judge Jones recognized that technology readily available in the marketplace was beyond the comprehension of the average consumer and that "often only the manufacturer ... can fairly be said to know and to understand when an article is suitably designed," and given this real-life situation, responsibility for product defect lies more fairly with the manufacturer. See Codling, 298 N.E.2d at 627. He continues hie situational analysis by noting that consumer products often involved mass production, distribution, and advertising, and that by placing liability for losses of nonusers on manufacturers, the related costs will be apportioned across the entire system of production and distribution. Id. at 627-28. Lastly, Judge Jones limits this assignment of liability, thus avoiding a potential onslaught of litigation that could arise. See id. at 628-29.

(15) Thus, a plaintiffs right to recover for emotional distress caused by the observation of the death of a family member due to negligence was both recognized and limited in Bovsun v. Sanperi, 461 N.E.2d 843 (1984). Judge Jones set forth the facts and procedural positions of the cases at hand, and then carefully probed the status of liability for mental duress occasioned by observing harm to a third person. Id. at 844-48. Recognizing that such damages can be "somewhat speculative and difficult to prove," and that recognizing such liability might result in "an enlargement of the scope of recoverable damages", Judge Jones emphasized that the holding did not create a new cause of action, but rather an expansion of plaintiff recovery rights. Id. at 849-50. The decision was consciously drafted not to enlarge the duty of care a defendant must afford potential plaintiffs. Id.

(16) This includes a general deference to the legislative branch of government, and a wise respect and celebration of the separation of powers: "[I]t would be a demonstration of judicial arrogation and highly inept and inapt to express any opinion as to the factual predicate for this legislation, its philosophical justification or the ultimate wisdom of its enactment. It is not our office to rejoice or to lament. A fair regard for the basic polity of separation of powers dictates judicial respect for the proper role of the legislative branch, and pride in the uniquely and essentially neutral role of the judicial branch. That judicial role is both a privilege and a limitation." Montgomery v. Daniels, 340 N.E.2d 444, 451 (1975). See also Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86, 89 (1983) (declining the invitation to recognize a wrongful termination of an employee-at-will tort, noting that such a significant change in the law is better left to the Legislature).

(17) See Montgomery, 340 N.E.2d at 452 (noting that in the case at hand the New York Legislature's exercise of policing power fell within the bounds of Connecticut's similar statue, upheld by the United State Supreme Court in Silver v. Silver, 280 U.S. 117 (1929), and thus was "surely acting within a recognized and legitimate area of its police powers"). See also id. at 453 (examining the United States Supreme Court's examination of Illinois similar statutory substitution for commom-law remedy); Onofre, 415 N.E.2d at 943 (evaluating New York's sodomy law in light of other holdings, both from the Court of Appeals and the United States Supreme Court, regarding the right to privacy); Levittown Union Free School Dist. v. Nyquist, 439 N.E.2d 359, 367 (1982) (comparing New York's school financing scheme with that upheld in San Antonio School Dist. V. Rodriguez, 411 U.S. 1 (1973), and sanctioned in Hawaii's 1968 amendment to its education finance statute).

(18) See Cogitations, supra note 1, at 547 (remembering that while a student of Felix Frankfurter at Harvard Law School, Frankfurter was called to serve on the United States Supreme Court).

(19) See Michael C. Dorf, Legal Indeterminacy and Institutional Design, 78 N.Y.U.L. REV. 875, 893-94 (2003) (noting that Justices Frankfurter and Harlan practiced a similar version of "retail restraint" regarding Constitutional adjudication).

(20) Prior to serving on the Court of Appeals, Hugh Jones began his law career in New York City before becoming a partner at the Utica firm Evans, Burdick, Severn & Jones. See John Caher, Judge Hugh R. Jones, N,Y.L.J., Mar. 6, 2001, at 2. He also served as president of the New York State Bar Association. Id. After reaching the Court's mandatory retirement age, Judge Jones returned to private practice at Hiscock & Barclay, a Syracuse-based law firm. See id.

(21) See Cogitations, supra note 1, at 547 (observing that while an attorney, he wanted court opinions to provide "the announcement of black-letter law on the basis of which I could predictably rely and advise my clients").

(22) See id. at 549 (stating that within the first sentence or paragraph of a decision, he would identity the law being addressed and provide a summary of the holding).

(23) See id. (continuing that he felt it necessary to recite only the facts necessary to the holding and to understanding the holding).

(24) STATE OF N.Y., GOVERNOR'S SPECIAL COMM. ON CRIMINAL OFFENDERS, PRELIMINARY REPORT OF THE GOVERNOR'S SPECIAL COMMITTEE ON CRIMINAL OFFENDERS (1968). The Governor's Special Committee on Criminal Offenders was established in 1966 by Governor Nelson A. Rockefeller, who charged the committee with finding better ways to target criminal recidivism. Id. at 11.

(25) See id. at 29 (observing that the criminal system's objectives are to prevent crime and to prevent the public unrest that results from the failure to uphold standards of conduct).

(26) Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954). This slow pace came despite the Supreme Court's instruction to implement these reforms "with all deliberate speed." Brown v. Board of Educ. of Topeka, 349 U.S. 294, 301 (1955). For an overview of the legal development of Brown, it's immediate aftermath, and the continuing struggle of integration, see Zebie A. Grayson, Comment, Marshall's Dream Deferred: Almost Four Decades After Brown, the Vestiges of De Jure Segregation Linger as the Implementation Process Continues, 20 S.U.L. REV. 53 (1993).

(27) See United States v. Wade, 388 U.S. 218, 236-38 (1967) (finding that a pretrial lineup for purposes of suspect identification by a witness is a crucial stage of prosecution, and thus lack of counsel at the lineup violates a defendant's right to fair trial under the Sixth Amendment); Stovall v. Denno, 388 U.S. 293, 302 (1967) (disallowing tainted suspect identifications); Gideon v. Wainwright, 372 U.S. 335, 342-44 (1963) (holding that the right to the aid of counsel is essential to the right to fair trial, thus "any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him," and that under the Fourteenth Amendment, the States are also bound by this rule); Mapp v. Ohio, 367 U.S. 643, 655 (1961) (stating "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court").

(28) See Abington School Dist. v. Schempp, 374 U.S. 203, 205 (1963) (disallowing daily reading from the Bible in class); Engel v. Vitale, 370 U.S. 421,424 (1962) (barring the in-class reading of a non-denominational, state-composed prayer as violation of the Establishment Clause).

(29) Roe v. Wade, 410 U.S. 113 (1973).

(30) See, e.g., Berger v. New York, 388 U.S. 41, 89-90 (1967) (Harlan, J., dissenting). Justice Harlan observed that:
 The Court in recent years has more and more taken to itself sole
 responsibility for setting the pattern of criminal law
 enforcement throughout the country. Time-honored distinctions
 between the constitutional protections afforded against federal
 authority by the Bill of Rights and those provided against state
 action by the Fourteenth Amendment have been obliterated, thus
 increasingly subjecting state criminal law enforcement
 policies to oversight by this Court.

Id. Justice Harlan also noted that the majority in this case had done so "[w]ithout pausing to explain or to justify its reasoning." Id. See also Miranda v. Arizona, 384 U.S. 436, 504 (1966) (Harlan, J., dissenting) ("I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now once all sides of the problem are considered.").

(31) See Roe, 410 U.S. at 221-22 (White, J., dissenting) ("I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right ... with scarcely any reason or authority for its action.").

John Hart Ely's observations of the weaknesses of Roe provide insightful perspective. See John Hart Ely, The Wages of Crying Wolf." A Comment on Roe v. Wade, 82 YALE L. J. 920 (1973). While personally supporting the right to abortion, Ely noted that the Court could have easily reached the same conclusion by finding the statute invalid on vagueness grounds rather than delving into an unsupported extension of the right to privacy. See id. at 922-23. Ely illustrated that the legal doctrines that the Court does cite, such as traditional tort principles, tend to undermine rather than support its conclusion. See id. at 925. He criticized the Court for delving into matters more appropriately left to the legislature, especially because the Constitution offers no guidance in this difficult moral area. See id. at 926-27. Ely stated that the early criticism of Roe as "more of the same Warren-type activism"' was justified as it never had been, noting that "[a]t times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking." Id. at 936-37.

(32) See Ronald Dworkin, Dissent on Douglas, THE NEW YORK REVIEW OF BOOKS, Feb. 19, 1981, at 3-4 (examining Justice Warren's recognition that the Supreme Court could be a powerful force in American politics, "unburdened by much political theory of checks and balances", and that Warren, heedless of warnings that doing so may damage the Court's reputation and authority, added "democratic moral statesmanship" to his duties of Supreme Court Justice).

(33) O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897). After noting that law and morals do not reflect the other, he notes that any judicial decision can give "a logical form," to it's reasoning, but just as often decisions are based on "some belief ... some opinion as to policy, or ... some attitude ... not capable of founding exact logical conclusions." Id. at 466.

(34) See Case R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874 (1987) (observing that the "received wisdom" of Lochner v. New York, 198 U.S. 45 (1905)--the most prominent of these cases--was that the case was incorrectly decided because it was "an illegitimate intrusion by the courts into a realm properly reserved to the political branches of government," an understanding that has since been endorsed by the Court in a number of cases). Interestingly, there was also considerable skepticism concerning the Court's apparent change in direction in the mid-30s. See Barry Cushman, Rethinking the New Deal Court, 80 VA. L. REV. 201, 202 n.1 (1994) (listing numerous articles, dating from 1938 to the 1980s, contending that the Supreme Court reversed direction during this era not due to reasons of legal analysis, but in response to the election of 1936 and President Roosevelt's proposed plan to pack the Court).

(35) See Samuel R. Olken, Historical Revisionism and Constitutional Change: Understanding the New Deal Court, 88 VA. L. REV. 265, 304-06 (2002) (exploring how the battles between legal formalists and realists surrounding the development of the Restatements of common law principles made the differences between the camps clearer).

(36) See, e.g., Mark Tushnet, Legal Scholarship: Its Causes and Cure, 90 YALE L.J. 1205, 1217 (1981) (explaining that Legal Realists know that "the process of judicial decision [is] as subjective as other more obviously political activities," and "that liberal political theory provided no explanation for why people, upon assuming the role of judge, could suddenly become moved by preferences that transcended the merely personal").

(37) Justice Antonin Scalia is a graduate of Harvard Law School, and a former professor of law at the University of Virginia and the University of Chicago. See Supreme Court of the United States, About the Supreme Court, Biographies of Current Members of the Supreme Court, at (last visited Sep. 27, 2003). He was appointed to the District of Columbia Court of Appeals in 1982, and seated on the Supreme Court in 1966. Id.

(38) A 1962 graduate of Harvard Law School and president of its law review, Judge Posner clerked for Supreme Court Justice William Brennan and was an assistant to Solicitor General Thurgood Marshall before entering academia, teaching law at the University of Chicago. See Chicago Council of Lawyers, Evaluation of the United States Court of Appeals for the Seventh Circuit, 43 DEPAUL L. REV. 673, 793 (1994). In 1981, President Reagan appointed Judge Posner to the Seventh Circuit, and he became Chief Judge in 1993. Id. In addition to his judicial duties, he continues to teach at the University of Chicago and writes and lectures extensively. Id.

(39) See Biographies of Current Members of the Supreme Court, supra note 37.

(40) Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989) [hereinafter Rule of Law].

(41) ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997). A central theme of this book is Scalia's contention that "the use of common law methods is simultaneously anachronistic and hubristic." Cass R. Sunstein, Justice Scalia's Democratic Formalism, 107 YALE L. J. 529, 530 (1997). Scalia contends that the common law method is "out of touch with the values and operations of modern government," and that by allowing judges excessive discretion, it undermines democratic values. See id.

(42) Scalia suggests that a judge following common law principles can often put forward "nothing better than a totality of the circumstances test to explain his decision," a practice more akin to "fact finding' than "pronouncing the law." Rule of Law, supra note 40, at 1180-81. Scalia contends that in contrast, when he adopts a general rule and states the basis for it, he restrains both lower courts and himself, and that the next case, should it have "such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle." Id. at 1179. However, this principle has not always provided restraint in practice. See, e.g., Stephen Clark, Judicially Straight? Boy Scouts v. Dale and the Missing Scalia Dissent, 76 S. CAL. L. REV. 521, 522-23 (2003) (observing that although Scalia has authored and supported opinions upholding laws which restrain conduct typically covered by the First Amendment if they are not specifically directed at First Amendment interests, this did not prevent him from taking the opposite position in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), which held that a state civil rights law which prohibited the Boy Scouts from expelling openly gay men was unconstitutional on First Amendment grounds).

(43) See, e.g., Antonin Scalia, Judicial Deference to Administrative Interpretation of Law, 1989 DUKE L.J. 511, 511 (1989) (endorsing Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), which holds that if Congress has spoken to the question at issue, than that is "the end of the matter" and the court must give Congress's intent effect).

(44) Scalia's originalist theory of construction compels close adherence to the plain meaning of a text, whether constitutional or statutory. See Rule of Law, supra note 40, at 1183-84. Additionally, the text should be interpreted according to its meaning at the time of its enactment. Id. at 1184. Scalia continues that if the originalist portion of his theory is rejected, then statutory and constitutional interpretation should be limited by "the actual practices of the society, as reflected in the laws enacted by its legislatures." Id. Scalia states that when a court "does not have a solid textual anchor or an established social norm from which to derive the general rule, its pronouncement appears uncomfortably like legislation." Id. at 1185. Given that Scalia says these social norms will be defined by the text of contemporary statutes, it would seem that Scalia's preferred approaches are originalist textualism, followed by contemporary textualism.

(45) See id. at 1187 (urging that judicial decisions avoid totality of the circumstances analysis and balancing tests and instead cast the holding "as far as the nature of the question allows"). Interestingly, early in his career Scalia was an advocate of more traditional common law adjudication, but later embraced the wide rule making method advocated in Rule of Law. See id. at 1178. Judge Jones seemed to have made the opposite progression. While a student of Felix Frankfurter's he held judicial restraint in high regard but as a practicing attorney, he sought "announcement of black-letter law" from judicial decisions. See Cogitations, supra note 1, at 547. However, unlike Scalia, Jones's judicial experience convinced him "that judges lack the competence or clairvoyance to anticipate the implications and ramifications of broad announcements and as well the wisdom to formulate them." Id. at 547-48.

(46) See Rule of Law, supra note 40, at 1179 (continuing to state that if future cases have facts such that he would prefer a different outcome, he will be unable to decide them so, as he has "committed [him]self to the governing principle").

(47) A Tale of Two Systems: The State and Federal Courts in New York, Current Issues Concerning the Use of Legislative History, Symposium at Albany Law School (Mar. 24, 2003).

(48) See Rule of Law, supra note 40, at 1183-84 (observing that this formalistic approach makes developing general rules easier for him than for other judges since he is "inclined to adhere closely to the plain meaning of a text").

(49) See id.

(50) See id. at 1184 (explaining that if a barn was not considered part of a house "in 1791 or 1868 and the Fourth Amendment did not cover it then" than it should not be covered by the Amendment now).

(51) See id.

(52) For example, in 1991 the Cardoze Law Review dedicated an entire volume to Justice Scalia. See, e.g., Nicholas S. Zeppos, Justice Scalia's Textualism: The "New" New Legal Process, 12 CARDOZO L. REV. 1597, 1634 (1991) (noting that Scalia "fails to practice textualism sincerely and consistently"); Peter L. Strauss, Comment: Legal Process and Judges in the Real World, 12 CARDOZO L. REV. 1653, 1656 (1991) (observing that adhering to Scalia's distrust of legislative history means that future judges, by ignoring the context that created legislation, will be "asserting strong law-making prerogatives" for themselves); Michael Herz, Textualism and Taboo: Interpretation and Deference for Justice Scalia, 12 CARDOZO L. REV. 1663, 1682-83 (1991) (seeing that Scalia's textualism and deference to agency interpretations are not incompatible, as both demonstrate a "false piety toward legislative supremacy" that bolsters judiciary power); David A. Strauss, Tradition, Precedent, and Justice Scalia, 12 CARDOZO L. REV. 1699, 1699 (1991) ("We knew from the start that Justice Scalia was not a great fan of stare decisis."); Larry Kramer, Judicial Asceticism, 12 CARDOZO L. REV. 1789, 1798 (1991) (observing "the irony that the central theme of Justice Scalia's jurisprudence is that justice is not his business," and thus the author "cannot imagine Justice Scalia serving on a common-law court [f]or the considerations of justice and policy that are central to common-law adjudication--and that surely ought to remain a part of other forms of adjudication--are anathema to Justice Scalia's vision of judging").

(53) Lochner v. New York, 198 U.S. 45 (1905).

(54) Id. at 76 (Holmes, J., dissenting). "The decision will depend on a judgment or intuition more subtle than any articulate major premise." Id.

(55) See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 34 (1977) (stating that rules of law can be vague and that cases will arise that no law addresses, and thus "judges must sometimes agonize over points of law, and ... two equally trained and intelligent judges will often disagree"); H.L.A. HART, THE CONCEPT OF LAW 123-24 (1961) (noting that canons of interpretation can only diminish, not eliminate, the uncertainties created by the inherent, "open texture," nature of the language of rules, and by fact-situations which share only some of the aspects of the situation the rule is meant to address).

(56) Poor use of history by lawyers can be seen in the on-going debate concerning the rights of property owners, in which some lawyers claim that the original understanding of the Fifth Amendment's Takings Clause would prevent regulations from being applied to privately owned land. See WILLIAM MICHAEL TREANOR, THE ORIGINAL UNDERSTANDING OF THE TAKINGS CLAUSE 1 (Environmental Policy Project, Georgetown University Law Center) (1998). The original meaning and interpretations of the clause applied only to "direct appropriation", and it was not meant to prevent restrictions on property use nor regulation that diminished value. Id. at 11. It was not until the 1890s that the Supreme Court gave the Takings Clause a broader reading, although not as broad as current property rights advocates give it. Id. "The only remarkable aspect of the original understanding of the Takings Clause is how rarely the original understanding of this clause is taken into account in political and legal debates over property rights." Id. at 2.

(57) The Supreme Court's recent decision in Lawrence v. Texas, 123 S.Ct. 2472 (2003), exemplifies how differing treatments of the historical record can drive a judge's opinion. See Peter Edidin, In Changing the Law of the Land, Six Justices Turned to Its History, N.Y. TIMES, July 20, 2003, [section] 4, at 7. Lawrence overturned the Court's 1986 decision in Bowers v. Hardwick, 478 U.S. 186 (1986), which had held that the Constitution did not guarantee the right to engage in "homosexual sodomy" and relied on evidence that throughout the 1700s and 1800's, sodomy was illegal in the United States. Id. In overturning Bowers, Justice Kennedy drew from a different historical perspective, stating "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter."' Id.

(58) See Sunstein, supra note 41, at 532 (asking "if judges do not use legislative history, might ambiguous texts be interpreted by reference to the judges' own views about policy and principle?").

(59) See John M. Walker, Jr., Judicial Tendencies in Statutory Construction: Differing Views on the Role of the Judge, 58 N.Y.U. ANN. SURV. AM. L. 203, 224-25 (2001) (agreeing with

(60) 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 (1995).

(61) See id. at 25 (observing that "[e]ven when interpreting statues that have been passed, ascertaining the legislative intent is often no less difficult than drawing common-law or constitutional distinctions").

(62) See Sunstein, supra note 41, at 546-47 (contending that even following Justice Scalia's rule that statutes be interpreted according to the meaning of their text at the time of enactment, legislative history is valuable in that it provides a very relevant tool for determining just what a particular term was intended to mean).

(63) Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).

(64) Alden v. Maine, 527 U.S. 706 (1999).

(65) U.S. CONST. Amend. XI (emphasis added).

(66) The full text of the Eleventh Amendment reads: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. Amend. XI.

(67) "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." U.S. CONST. Amend. X. The Alden Court noted that "[a]ny doubt regarding the constitutional role of the States as sovereign entities is removed by the Tenth Amendment," and thus the States retained "immunity from suit [as] a fundamental aspect of sovereignty," and therefore the powers granted to Congress under Article I of the Constitution "do not include the power to subject nonconsenting States to private suits for damages in state courts." Alden, 527 U.S. at 712-13 (1999).

(68) Logically, if the Tenth Amendment inoculated nonconsenting States from private suits in federal courts, the domicile of the plaintiff, an important element of the Eleventh Amendment, would seem moot.

(69) "[T]he Constitution's structure, its history, and the authoritative interpretations by this Court," but not its text, were the foundation of the Alden decision. See id. at 713. Among the prominent "authoritative interpretations" mentioned in Alden is Seminole Tribe, in which the same Court, by similar vote, broke from the precedents of Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) and Ex parte Young, 209 U.S. 123 (1908). See id. at 712; see also Seminole Tribe, 517 U.S. at 66, 76.

(70) See Alden, 527 U.S. 706, 713 (stating that the sovereign immunity from suit was enjoyed by the States "before the ratification of the Constitution, and which they retain today").

(71) See, e.g., Ernest A. Young, Is the Sky Falling on the Federal Government? State Sovereign Immunity, the Section Five Power, and the Federal Balance, 81 TEX. L. REV. 1551, 1555 (2003) (book review) (observing that the case is decided on structural, not textual grounds); Christina Bohannan, Beyond Abrogation of Sovereign Immunity: State Waivers, Private Contracts, and Federal Incentives, 77 N.Y.U.L. REV. 273, 339 (2002) (observing that the Alden Court abandoned any pretext of reliance on the 11th Amendment text).

(72) See supra note 38.

(73) A search of Westlaw's archive of law review articles reveals that Judge Posner has authored or co-authored 17 books and over 70 articles since 1990.

(74) Richard A. Posner, The Path Away From the Law, 110 HARV. L. REV. 1039 (1997).

(75) Id. at 1042.

(76) Id. at 1040 (claiming that Holmes's The Path of the Law advances what Posner calls the "supersession thesis", that, as Holmes claimed, the law as we know it is just a phase in human development). (77) Id. at 1040.

(78) Id. at 1042.

(79) See id. at 1041-42 (stating that judges make decisions ideally by "weighing costs and benefits" but with "some regard ... for avoiding rapid changes of front that would make it difficult for lawyers to predict the outcomes of new cases").

(80) See id. at 1041 (elaborating that "[t]he moral and mentalistic baggage of law" is regrettable, and that "the only worthwhile use of history in law" is to determine which portions of it have become superfluous and should be jettisoned--presumably as we progress beyond law to the next stage of human history).


(82) Id. at 116-17.

(83) Id.

(84)These lectures, the 1997 Oliver Wendell Holmes Lectures, are the source of two of Judge Posner publications: Richard A. Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637 (1998) [hereinafter Problematics]; and RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999).

(85) Posner states that moral issues are not "inescapable in the practice of adjudication." See Problematics, supra note 84, at 1697-98. Based upon his belief that "there is no necessary or organic connection between law and morality ... judges need not take sides on moral questions." Id.

(86) Lawrence A. Cunningham, Cardozo and Posner: A Study in Contracts, 36 WM. & MARY L. REV. 1379 (1995). Professor Cunningham observes that Posner's profile, in terms of number of reproduced opinions in contracts text books, has grown to be on par with Cardozo, but that the latter's "capacious juridical framework capable of harmonizing the many contending concerns of contract law" outstrips Posner's "one primary concern--efficiency through freedom of contract." Id. at 1379-81. Cunningham begins with Isaiah Berlin's quote from the Greek poet Archilochus--"The fox knows many things, but the hedgehog knows one big thing"--and likens Cardozo and his nuanced analysis to that of an intellectual fox, while framing Posner's less textured opinions as those of an intellectual hedgehog. Id.

(87) See id. at 1414 (quoting Selmer Co. v. Blakeslee-Midwest Co., 704 F.2d, 924, 927 (1983)). When Judge Posner does encourage reference to morality, it is to the "moral opinions of ... the commercial community." See Posner, supra note 74, at 1042.

(88) See JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF A PRAGMATIST APPROACH TO LEGAL THEORY 17 (2001) (explaining that a flaw of economic analysis of tort law is that it ignores the point that litigants come to court to address alleged wrongs done to them by other parties and to be told by the court who was right and who was wronged, not "to provide the judge with an opportunity to pursue or refine his vision of optimal risk reduction policy").

(89) Judge Posner identifies the morality of the commercial community as "relevant", and that the more the law conforms to the commercial world's morality, the "easier it is to understand and comply with." See Posner, supra note 74, at 1042.

(90) BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 133-34 (1921) (continuing to observe that "insistence that morality and justice are not law" has the effect of encouraging anomie, "breed[ing] distrust and contempt of law as something to which morality and justice are not merely alien, but hostile").

(91) Meinhard v. Salmon, 164 N.E. 545, 546 (1928) (describing the heightened level of duty required of fiduciaries relative to that required of those dealing with each other at arm's length).

(92) See Cunningham, supra note 86, at 1381 (observing that Cardezo's contracts opinions display mastery of "the incremental evolution of the common law" while still serving "the imperative to adapt law to the needs of those it governs").

(93) Aharon Barak, The Role of a Supreme Court in a Democracy, 53 HASTINGS L. J. 1205, 1207 (2002).

(94) Codling v. Paglia, 298 N.E.2d 622 (1973).

(95) Id. at 624.

(96) See id. at 627-28 (observing that "[t]oday as never before the product in the hands of the consumer is often a most sophisticated and even mysterious article").

(97) See id.

(98) Id. at 626-27.

(99) Id. at 626.

(100) Id. at 627.

(101) MacPherson v. Buick Motor Co., 111 N.E. 1050 (1916). Employing a process similar to that used in Codling, Cardozo traced the development of the duty of care a manufacturer owes outside of that imposed by contract from its application to only inherently dangerous items to things which are "reasonably certain to place life and limb in peril when negligently made." Id. at 1053. Cardozo then applies this principle to the facts at hand with an acknowledgment of contemporary realities, noting that "[t]he principle that the danger must be imminent does not change, but the things subject to the principle do change." Id. Cardozo acknowledges decisions that support contrary outcomes and carefully distinguishes them from the case at hand, concluding that the evolving principle to be applied must reflect "the needs of life in a developing civilization." Id.

(102) STEPHEN L. CARTER, THE CONFIRMATION MESS: CLEANING UP THE FEDERAL APPOINTMENTS PROCESS (1994), presents a comprehensive look at the history of the confirmation process, and the forces that fuel the conflict surrounding it. Carter notes that we have come to view the Court as our Court, and thus want nominees to reflect our values. See id. at 55. As he notes, "given the awesome constitutional authority that our Supreme Court wields," a wild card Justice is "frightening," leading to the confirmation process's attempt to nail down exactly how a nominee plans to exercise this awesome, and life-long, authority. See id. Carter suggests that an essential step in rehabilitating the process is that "we surrender the bold and exciting image of the Supreme Court as national policy-maker" and restore it to its position of a check on the power of the democratically elected branches of government. Id. at 205-06. This would require both judicial neutrality and an abatement of public cynicism of the judiciary, or as Carter states, "[t]he ideal judge in the federal system deliberates largely in the absence of distinct political pressures, and the ideal Supreme Court Justice must be the most independent of all." Id. at 147.

(103) See, e.g., Thomas R. Phillips, Electoral Accountability and Judicial Independence, 64 OH10 ST. L. J. 137 (2003); Michael E. Solimine, The False Promise of Judicial Elections in Ohio, 30 CAP. U. L. REV. 559 (2002); David Barnhizer, "On the Make": Campaign Funding and the Corrupting of the American Judiciary, 50 CATH. U. L. REV. 361 (2001).

(104) See Standard Chems. & Metals Corp. v. Waugh Chem. Corp., 131 N.E. 566, 567 (1921).

(105) See ISAIAH BERLIN, The Pursuit of the Ideal, in THE CROOKED TIMBER OF HUMANITY: CHAPTERS IN THE HISTORY OF IDEAS 1, 11 (Henry Hardy, ed., Princeton Univ. Press 1997) (1990) (describing pluralism as "the conception that there are many different ends that men may seek and still be fully rational, fully men, capable of understanding each other and sympathizing and deriving light from each other").

(106) For example, Berlin notes that Machiavelli contrasts the unbridled pursuit of self-interest with Christian virtues, and while preferring the former but without condemning the latter, Machiavelli "merely points out that the two moralities are incompatible, and he does not recognise [sic] any overarching criterion whereby we are enabled to decide the right life for men." Id. at 8.

(107) See id. at 12-13 (postulating that equality may require the "restraint of the liberty of those who wish to dominate," while liberty may have to be hedged to provide for the needs of all, including "to allow justice or fairness to be exercised").

(108) Id. at 17.

(109) Id.

(110) Id.

(111) "Justice is not to be taken by storm. She is to be wooed by slow advances." BENJAMIN N. CARDOZO, THE GROWTH OF LAW 133 (Greenwood Press 1975) (1924).

(112) See LEARNED HAND, Morals in Public Life, in THE SPIRIT OF LIBERTY 229--30 (1953) (quoting Oliver Cromwell's compromise offer to the Scots before the Battle of Dunbar: "I should like to have every court begin, 'I beseech ye in the bowels of Christ, think that ye may be mistaken."').

(113) See Aharon Barak, A Judge on Judging." The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 16, 77-78 (2002) (observing that indeterminacy allows a judge to find the law's purpose, and to "bridge the gap between law and society").

(114) See Jules L. Coleman & Brian Leiter, Determinacy, Objectivity, and Authority, 142 U. PA. L. REV. 549, 582 (1993) (observing that indeterminacy does not preclude predictable results, and that "rationally indeterminate outcomes can nevertheless be reliably predictable").

(115) See Llewellyn, supra note 9, at 4.

(116) See Cogitations, supra note 1, at 549-50 (discussing the impact internal writings circulated during consideration can have the final published opinion). Chief Judge Judith S. Kaye recalled that Judge Jones's "'internal' dissent[s]" proved valuable to write against, thereby strengthening the Court's ultimate unanimous decision. See Judith S. Kaye, A Tribute to the Honorable Hugh R. Jones, 65 ALB. L. REV. 1, 3 (2001).

(117) See Cogitations, supra note 1, at 545 ("The coordinates by which I make choices ... are those of the best interests of the Court and of the public perception of the institution.").

(118) See Barak, supra note 93, at 1212.

(119) Id.

(120) "The need to ensure confidence does not mean the need to guarantee popularity, but rather, the need to preserve the public's sense that judicial discretion is being exercised objectively, through a neutral application of the laws and the fundamental values of the nation; that judicial discretion is exercised in order to maintain the articles of faith of the people and not the articles of faith of the judge; that the judge is not a party to the power struggles in the state, and that he is fighting not for his own power, but for the rule of law." Id.

(121) See STEVEN J. BURTON, JUDGING IN GOOD FAITH 36-37 (1992) (describing the "good faith thesis" as requiring a judge to uphold the law by "act[ing] on the reasons provided by the law and not on reasons excluded by judicial duty or the law's standards.") Even when a judge finds the law lacking, the Rule of Law's moral values,--"predictability, coordination, separation of powers, fairness, equal treatment"--may force the judge to ignore an unjust result in the case at hand resulting from following the law. Id. at 36. A judge is required to identify and serve the needs of the law "separate from balancing the moral reasons for following the law against the moral reasons for doing something else." Id. Upon taking office, judges surrender the ability to act for policy or moral reasons not warranted by the law, nor do they recover the opportunity to do so even when indeterminate law allows for the use of discretion. Id. at 37. "[J]udicial duty and discretion can coexist when the law is understood to admit and exclude results for action, but not necessarily to determine results." Id. at 43.

(122) Cogitations, supra note 1, at 547.

(123) See id. at 544 (contrasting this need for neutrality with the duty of a practicing attorney to be an advocate for her client).

(124) Justice Scalia noted that a majority opinion constrains not just lower courts, but future decisions of the Supreme Court, even if personal preferences would favor the opposite outcome. See Rule of Law, supra note 40, at 1179.

(125) Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055 (2001). In answer to questions of state law certified by the Second Circuit Court of Appeals, the New York Court of Appeals, while not unsympathetic to victims and successors of victims of handgun violence, did not expand the class of those owed a duty of care by handgun manufacturers to include these plaintiffs. Id. at 1066. The court noted that in determining the existence of a duty, "'courts must be mindful of the precedential, and consequential, future effects of their rulings.'" Id. at 1060 (quoting Lauer v. City of New York, 95 N.Y.2d 95, 100 (2000)).

(126) See 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 750 N.E.2d 1097, 1101-03 (2001) (using previous Court of Appeals decisions to define the outer bounds of duty of care, and electing not to extend that duty to "an indeterminate group" even though they "may have provable financial losses directly traceable" to the defendant's negligence, concluding that "limiting the scope of defendants' duty to those who have, as a result of these events, suffered personal injury or property damage--as historically courts have done--affords a principled basis for reasonably apportioning liability").

(127) See Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057, 1094 (1975) (outlining the tasks for his aptly named judge Hercules: "He must construct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory provisions as well.").

(128) This examination requires an identification of Llewellyn's "situation sense" of the case, and then, in consideration of the structure and rules of the case's situational milieu, using analogous scenarios to help predict what the practical results of adherence to precedent will be. See supra, note 9.

(129) "Those that cannot prove their worth and strength by the test of experience are sacrificed." CARDOZO, supra note 90, at 22.

(130) Omychund v. Barker, 26 Eng. Rep. 15, 22-23 (1744). See Ronald Dworkin, Law's Ambition For Itself, 71 VA. L. REV. 173, 173 (1985) (noting that the expression is frequently used as a metaphor for the judicial process); Lon L. Fuller, Positivism and Fidelity to Law--a Reply to Professor Hart, 71 HARV. L. REV. 630, 668 (1958) (observing that the product of the common law process might be "a clarification of the end itself," rather than "merely a more apt choice of means for the end sought.")

Howard A. Levine Associate Judge, New York Court of Appeals, State of New York, Retired. I wish to acknowledge with deep appreciation the invaluable assistance of my research assistant, Norman W. Kee, Albany Law School, Class of 2004, in the preparation of this speech.
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Author:Levine, Howard A.
Publication:Albany Law Review
Date:Sep 22, 2003
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