"A court performs its essential function when it decides the rights of parties before it. Its decision of private controversies may sometimes greatly affect public issues. Large questions of law are often resolved by the manner in which private litigation is decided. But this is normally an incident to the court's main function to settle controversy. It is a rare exercise of judicial power to use a decision in private litigation as a purposeful mechanism to achieve direct public objectives greatly beyond the rights and interests before the court."

Judge Bergan
Boomer v. Atlantic Cement, Co.
257 N.E.2d 870 (N.Y. 1970)

Divorcing Morality from Criminality

There has been much discussion about where morality sits when it comes to criminal laws. Some say that morality forms the fundamental basis for law and thus anything immoral is illegal and visa versa. Others say that we shouldn't "legislate morality" and should restrict our laws to what doesn't directly harm others. Most people, I think, are in the middle of these poles. Both poles, interestingly enough lead to the same end: judicial tyranny or complete anarchy.

To make everything that is immoral illegal and visa versa would be disastrous. Myriad acts in society are immoral. Yet we have chosen as a people to allow our conscience and society--not our legislature--decide the punishment. These "immoral acts" include lying in personal contexts, cheating, infidelity in marriage and some would say certain sexual acts. Many people in society see these things as morally repugnant, but they are allowed because our society has effective sanctions in ways other than criminal law to combat them or we are in flux as to whether we think they are right or wrong. More importantly, though, I think we realize as a people that we must be allowed to make choices (even bad ones) if we are to become autonomous self-actualized beings. To allow our government to intercede in all things moral and ethical would create a police state not unlike the greatest horrors we have seen both in history and literature. Or we have laws that no one follows, laws aren't enforced, law loses its legitimacy and anarchy ensues.

On the other hand, to divorce morality from criminality completely would lead to the same result. Common morals, whether we like it or not, form the very foundation of our society. They are the foundation of community and they represent what is greatest in each of us. We have been legislating morality since the birth of our nation. If the belief in personal freedom, equality, tolerance, and growth towards a more perfect union are not moral goals, then what are they?
And If we do not base our laws on common morality, then what do we base them on? Political expedience? Laws in such a regime would quickly degenerate to a strictly majoritarian tool of enforcement (some would say it is already). No longer will the law have any sense of legitimacy or value in precedent. No longer will people follow laws because they feel they are inherently right. If people don't see the laws as inherently moral, they will stop following them whenever they are not being watched. No society can long survive when people don't follow the laws mostly on their own initiative. The government would quickly evolve into the most intolerant police state imaginable in order to preserve itself. Or, as above, we will have laws that no one follows and are not enforced, law loses its legitimacy and anarchy ensues.The very danger that anti-moralists decry is the very end which they would help bring about.

So, how about basing laws strictly on what does or doesn't affect others? I think Ms. Steele's points on individual actions affecting others are well founded. If I may add my own spin, many have been deceived into thinking that any behavior, no matter how abhorrent, should be tolerated, inasmuch as it doesn't affect another's personal liberties. In truth, none of us live in a vacuum and all actions of the individual affect the community. Many "personal choices" have merely time-delayed reactions, and their repercussions are not felt until they have been left to flourish. By the time they have ripened, they have rotted the inner core of our society. Thus, sometimes, as a society, we would be better off to be a little more far-sighted.

But as a society based on plurality and diversity, whose morals and values do we base our laws on? Therein lies the problem and the solution. In my opinion, we should as a people search for the common morals we all hold. Society should encourage morals, not discourage them as much of popular culture does. For those who believe that "morals" are outdated and archaic, perhaps they should propose an alternative that would allow society to continue to grow. But we should be wary in changing the laws, either in the name of "tolerance" or in "upholding our common morality."

Criminal laws are an innappropriate battleground upon which to wage wars of society. Strong moralists fight there because they feel they are losing the hearts and minds of the masses to a popular culture devoid of moral reasoning. Strong anti-moralists fight there because tradition, moral values and precedent are against them.

Both sides are wrong to use this most ugly and brutish arm of our law to push their agendas. Both sides should take their cases to the American people and allow them to decide. Rather than engrave their positions in rock-solid law (only to have that rock crumble under the next regime--thus weakening the very foundation with each successive edifice), they should attempt to present their positions as societial aims and leave the laws alone. Only when a law is so oppressive to a minority that it offends the character of our nation should it be changed. And only when behavior is so repugnant to our national character that it threatens to undermine society should a law be made against it.

Have I answered any questions or just restated them? Yeah, I'm not sure either.

MedMal and Tort Reform

I'm going to have some things to say on this topic in the future, probably in the next month or so. For now, I want to post this article in the New York Times that gives a national overview. I welcome comments.

A Victory for Discretion, A Defeat for Uniformity

In United States v. Booker, N0. 04-104, The Supreme Court ruled this week Federal judges are no longer required to implement sentencing guidelines established in the 1980s. They are now just suggestions. The standard is now "reasonableness."

An important but somewhat overlooked issue here is the question of Judicial fact-finding, which is, in fact, what this is all based on. Not only does this decision increase the discretion of judges, it also further shifts their role from unbiased judicial umpire to inquisitorial fact-finder.

I like the following phrase taken from the Washington Post (Full Article Below--See NYTimes Article Also):

"Like a twist of a gigantic Rubik's Cube, the court's decision changed the entire structure of criteria facing thousands of federal criminal defendants, the lawyers who represent them, the prosecutors who charge them and the judges who sentence them."

And what do experts see as the largest initial effect of the Supreme Court's decision? You guessed it: more litigation.

By Charles Lane
Washington Post Staff Writer
Thursday, January 13, 2005; Page A01

The Supreme Court ruled yesterday that federal judges are no longer bound by mandatory sentencing guidelines but need only consult them when they punish federal criminals.

Under the ruling, federal judges will be free to decide for themselves whether defendants deserve sentences longer or shorter than the ranges prescribed by the guidelines, but their decisions will be subject to reversal if appeals courts find them unreasonable.

The guidelines were established in the 1980s as part of a bipartisan effort to ensure that the same crime would receive about the same punishment nationwide. But since then, they have become the source of intense controversy in the federal courts, subject to criticism across the ideological spectrum. Conservatives and prosecutors have said that some judges have tried to coddle criminals by eluding the guidelines. Defense lawyers and some judges have said they have resulted in excessive sentences for some defendants.

The divided outcome emerged from unusual twin majority opinions in United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105. One group of five justices said the current administration of the guidelines violates defendants' right to a jury trial because judges impose sentences under them based on facts that a jury did not find beyond a reasonable doubt.

Another group of five justices explained why the guidelines must nevertheless continue to shape sentencing decisions even if judges are no longer legally bound to follow them.

The modified system, Justice Stephen G. Breyer wrote on behalf of the five justices who supported it, will help "avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary."

While Breyer wrote the crucial opinion, the pivotal player in the case was Justice Ruth Bader Ginsburg, the only one of the nine justices who voted both to hold the current sentencing system unconstitutional and to preserve the guidelines in voluntary form.

Joining Breyer and Ginsburg were Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Anthony M. Kennedy.

The other majority consisted of Ginsburg and Justices John Paul Stevens, Antonin Scalia, David H. Souter and Clarence Thomas.

Stevens sharply criticized the court's split decision, calling Breyer's solution a "gross impropriety." Scalia labeled it a recipe for "havoc" in the federal criminal justice system.

While the decision will preserve at least some role for the sentencing guidelines, the precise practical impact beyond that remains to be worked out.

Like a twist of a gigantic Rubik's Cube, the court's decision changed the entire structure of criteria facing thousands of federal criminal defendants, the lawyers who represent them, the prosecutors who charge them and the judges who sentence them.

As one example of the Breyer opinion's wide impact, the new appellate standard it introduces for sentences, "reasonableness," effectively strikes down the Feeney Amendment, a 2003 law that had further restricted federal trial judges' latitude in sentencing by giving appeals courts more power to overturn their decisions.

The federal courts issue more than 60,000 criminal sentences each year, according to the Justice Department.

The likeliest short-term outcome, legal analysts said yesterday, is more litigation, as defendants seek to challenge sentences imposed under the previous system, and as some judges who have criticized the guidelines as too harsh test their new freedom by imposing lesser sentences where they think they are justified.

Critics who regard the sentencing guidelines as too harsh said the court had cheated criminal defendants of an expected victory.

"This is actually a bittersweet day for the criminal defendants. On one hand, the right to a jury trial is vindicated, but on the other hand, in the remedy, it is undercut," said Jon Sands, a federal public defender in Arizona and chairman of the Federal Defender Sentencing Guidelines Committee.

For its part, the Bush administration reacted warily to the court's ruling, with Assistant Attorney General Christopher A. Wray declaring that the Justice Department was "disappointed that the decision made the guidelines advisory in nature," but noting that "federal sentencing guidelines remain a critical part of the process to achieve justice."

The split decision was a surprise ending to a long-running drama within the court that seemed to reach a turning point last June, when the court ruled, 5 to 4, that a state sentencing guideline system that permitted a judge to "enhance" a defendant's sentence based on his own fact-finding violated the constitutional guarantee of a trial by jury. The decision, Blakely v. Washington, was the latest result of the legal revolution set in motion in 2000 by the court's 5 to 4 decision in Apprendi v. New Jersey.

In Apprendi, the court ruled that a judge could not add two years to a 10-year sentence for a weapons crime because he had found that it was motivated by racial bias. A sentence could only be enhanced, the court ruled, based on facts found by a jury beyond a reasonable doubt, lest the Sixth Amendment guarantee of a jury trial be violated.

The logic of Apprendi and Blakely seemed to apply to -- and therefore threaten -- the federal sentencing guidelines, which are written by a commission Congress set up in 1984 to help smooth out what once were huge differences in sentences imposed by judges nationwide for the same criminal conduct.

The guidelines, which took effect in 1987 and are periodically updated, were the fruit of a sentencing-reform movement led by strange political bedfellows. Liberal Democrats who objected to wide inequality in sentencing were joined by conservative Republicans who wanted to force judges to give out stiffer sentences across the board.

As chief counsel to the Senate Judiciary Committee, and later as a federal appeals judge, Breyer played a key role in drafting the sentencing legislation and the guidelines.

Thick as a phone book, the guidelines supply the criteria judges are supposed to follow when they choose to increase a sentence above a certain range or drop it below that.

Freddie Booker's case was a fairly typical one. A jury convicted him of trafficking 92.5 grams of cocaine, a crime punishable by no more than 23 years and 10 months in prison under the guidelines. But at a post-trial sentencing hearing, the judge found that he had probably had 566 grams of cocaine, and had obstructed justice. That bumped Booker's sentence up to 30 years.

As the U.S. prison population has swelled, the guidelines have come under fire from critics who say that they are packing federal penitentiaries with nonviolent drug offenders.

But both Republican and Democratic presidents have credited the guidelines with helping to reduce the nation's violent-crime rate, which hit a 30-year low in 2003, according to the Justice Department.

Breyer himself remains deeply attached to the guidelines and has been fighting to preserve them at the court ever since Apprendi was decided.

His allies in the battle were Rehnquist and O'Connor and Kennedy.

Until yesterday, however, they were consistently outnumbered by a liberal-conservative alliance made up of Stevens, Souter and Ginsburg on the left and Scalia and Thomas on the right.

And during an oral argument on the Booker and Fanfan cases, which the court heard Oct. 4 on an expedited basis because of the uncertainty its Blakely ruling had created in the federal courts, there was no indication of any change in the 5 to 4 lineup that decided Blakely.

But Breyer apparently succeeded in convincing Ginsburg that it was possible to compromise.

"It is a remarkable act of judicial jujitsu that Breyer's managed to pull off," said Frank O. Bowman, a professor of law at Indiana University.

California’s Negligence Standard and the Trichotomy

California in Rowland v. Christian 443 P.2d 561 (Cal. 1968), has in effect done away with the trichotomy of Invitee, Licensee and Trespasser as determinative of defendant’s liability for people on a defendant’s property.

To put it simply, if you own property and someone enters upon your land, it’s irrelevant whether you are there without the owner’s permission. The trend away from the common law distinctions of invitee, licensee and trespasser is quite disturbing and appears to move towards the philosophy of affirmative rights our system is becoming more and more obsessed with.

I can understand perhaps doing away with the distinction between invitee and licensee as many states have done. Both licensees and invitees are on your land with your permission and should be accorded the same level of care and protection. As in Rowland, the common law rules of negligence should apply as opposed to the fine gradations between whether a person is a business visitor, personal guest or suffered passerby. I disagree entirely, however with Rowland, in making that same obligation extend to trespassers, who should be given no guarantees and have no protection extended to them against either patent or latent dangers.

The point is this: My knowledge of the dangers on my land is itself a property right. (see Anthony Kronman’s Mistake, Disclosure, Information and the Law of Contracts J. Legal Stud. 1 (1978)). So, when I invite or suffer a third party to come on my land, it is implied that among the bundle of rights I am offering to the licensee or invitee is not only the temporary right to be on my property but also the implied property right to the knowledge of any latent dangers they may encounter.

However, a trespasser has been given no such property right. To demand that I tell the trespasser of any inherent dangers, whether manmade or natural, is a forced conversion by the government of my property right.

For example, I have a concealed ditch on my land full of icy water. This ditch is on the entranceway to my land and must be crossed to go any further. If I invite you or allow you onto my land, it can reasonably be implied that I have a legal obligation to warn you about that ditch.

However, if I see you on my land, I tell you not to enter, and you do anyway, do I have an obligation to warn you of the ditch? I know you are going to be harmed by falling in the ditch, but I do nothing. The court in Buch v. Amory would likely rule I have no liability. The court in Yania v. Bigan would likely rule I have no liability. But the California court in the 60’s would say I am liable for the trespasser (interestingly enough, Ouellete v. Blanchard would say I’m liable to a trespasser but not “a person who enters against the known wishes of the landowner.” Can someone explain to me the difference?)

My feeling is: In addition to losing my sacrosanct right to undisturbed possession of property by your trespassing, must I also relinquish to you my property right to the knowledge of that ditch? I don’t think so.

The property right to information gives the question of Bird v. Holbrook a new spin as well. That information of knowing where the gun is and how much it will hurt you is a property right the government is forcing me to give you. Is that a government taking? Should I be compensated (say by being promised you’ll stay the hell off my land?) It’s obviously a valuable property right (it may mean the difference between life and death). Should I have to give it to you simply because you’ve taken other rights? Does it hinge on whether I intentionally set a trap to harm you? Then my ditch example would be exempt from immunity. But why should it matter? Should I have to tell you that “deadly force” will be used if you trespass? Why? How much of my bundle am I obligated to give you since you’ve already decided to take some without my permission?

Lord Coleridge Regina v. Dudley and Stephens
14 Q.B.D. 273 (1884)

"Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence...

"We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime."

Thoughts on Causation

Do you ever get something caught in your mind and can’t let go of it? Well, I’ve been struggling with these scenarios over the break and think I’ve finally come to some cogent (though perhaps not very articulate) thoughts on them. Please let me know what you think.

Seavey and Keeton’s cases on pg. 465. Tort, Epstein, Eighth Edition.

Seavey’s Example:

“[T]he defendant leaves a ten-pound can of nitroglycerine on a table from which it is knocked off by a child; it hurts the child’s foot but, miraculously, does not explode. If defendant had left a can of water of similar size on the table, he could be held negligent: since the risk that materialized was unrelated to the explosive power of the nitroglycerine, the plaintiff could not recover.”

Keeton’s Example

“The defendant ‘negligently’ places unlabelled rat poison on a shelf full of food. The shelf happens to be near a stove that gives off heat, and the heat cuases the poison to explode, injuring the plaintiff. Keeton argues that this plaintiff should be denied recovery on grounds that the negligent aspect of the defendant’s conduct is not the cause of the plaintiff’s harm.”

I posit that the actor in Seavey’s example is in fact liable for the harm caused to the child because the temporal aspect of the negligence caused the harm, despite the harm being unforeseeable. However, in the second scenario, the actor is not liable because his negligence is incidental and has nothing to do with the harm.

With the 10 lb. tub of nitro, the negligent act was leaving it on the table. Whether the danger came from its explosion or its foot-crushing weight, the negligent placement caused the harm and constitutes liability. Hence any harm, whether within the realm of foreseeability or not, brings liability. If it had been water, and it is assumed that placing the water on the table was not negligent, the fact that it causes harm will not be enough for liability. The Negligence has to be within the act.

With the unlabelled rat poison, however, the negligent act was the omission of labeling the poison, not the temporal placement near the oven. Whether it had been labeled or not, it still would have been over the oven and exploded. Therefore, the negligent aspect of the act in this case does not cause the harm.

If it had been negligent to place the rat poison near where the actor placed it (perhaps a child, who cannot read a labeled or unlabelled rat poison can get to it), then the temporal aspect of placement would correlate directly to the harm and hence the actor would be liable.

Take two more scenarios:

Scenario 1: Assume that I negligently park my car in the middle of the road above a manhole. The act is negligent because I am not taking the reasonable standard of care to protect other drivers from running into my car. The manhole emits gas from an underground pocket (Act of God). The gasses ignite my engine and my car explodes, sending shrapnel into surrounding pedestrians.

Because the negligent aspect of my act was placing the car in its temporal location, I am liable for anything resulting from that placement regardless of whether or not I could have foreseen it at the time. Because my temporal placement (at THAT time and THAT place) of my car was the cause of the injuries and because it was a negligent act (negligent, albeit for different reasons that what ended up causing harm), I am liable.

Scenario 2: Now, assume I park my car with all due care on the side of the road above a manhole cover but I negligently leave my keys in the car. The same situation occurs. I will not be held liable because my negligence did not cause the harm. The incident would have occurred whether I had left my keys in the car or not, whether I had been negligent or not.

There must be a direct causal chain between my act and the harm. Just the same with the rat poison. The rat poison would have exploded whether or not it had been labeled. And the ten pound tub of nitro hurt the child because it was placed where it was. Regardless of how it ended up hurting the child, it’s temporal placement (what was deemed the negligent act) was the direct cause of the harm.

In conclusion, it seems to me that the type of harm, being foreseeable or otherwise, is irrelevant as long as the harm is caused from the temporal aspect of the negligent act. It’s irrelevant whether the harm is caused by the reason the act is held to be negligent as long as the act was negligent and the act caused the harm.

Problems with Foreseeability

Two Problems with Foreseeability (another view)

1. Foreseeability can erroneously include a non-causal player.

Take a medmal case. It is established that A negligently operates on B (he fails to wear gloves). One of the foreseeable risks of A’s negligence is that B will develop X (illness, disease, etc.). Simply showing that A is negligent and that it’s foreseeable that A’s negligence causes X doesn’t follow logically that A’s negligence did cause X. One MUST look ex-post and see if there were any breaks in the causal chain to assure that A’s negligence really did cause X and that it wasn’t just within the realm of foreseeable options that A’s negligence MAY cause. Otherwise, you put A at risk of being sued for something that he didn’t do.

It is not enough to prove that A was negligent and that one of the foreseeable results was that X may happen. Nor was it enough the it was foreseeable and a but-for cause. Without the operation, B would not have developed X. One must show that A was negligent and that A’s negligent act caused X without any intervening factors.

Again, It’s not enough that A’s negligence could foreseeably cause X and that A was negligent and X happened (Lama v. Borras). One must look back and show that A’s negligent act caused X to happen, i.e. that there is an unbroken causal chain between A’s negligent act and X’s occurrence. Foreseeability as a determining factor for causation doesn’t provide that. It only provides a likely future world in which that could happen, not that it did happen. It must be seen ex post.


2. Foreseeability can also erroneously exclude a causal player.

In the famous Palsgraf case, there is an unbroken line of actions from D’s push to P’s harm. No grossly negligent acts, intentional torts, bizarre acts of God or Intervening pre-emptive causes. D was negligent because his act could have foreseeably and unreasonably harmed the people around him (foreseeability is fine when determining whether an act is negligent). However, regardless of whether P’s harm was foreseeable,
1) D’s act was negligent
2) The negligent aspect of D’s act caused P’s harm.