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Volume 5, Number 2 (1982) reprinted by permission Legal Studies Forum THE JUDGE AS DRAMATIST by James A. McKenna, III* itivists." When struggling to force the facts of a dis- pute into the mold of the relevant statute or precedent, a positivist judge does not view laws so much as repre- sentatives of moral or religious or political "rights," but rather as legitimate "rules" of his society. Such judges, thus, seek to insulate their decisions from what is or is not moral.1 A positivist judge does not readily abandon precedent or interpret a statute in such a novel way that he then becomes an activist, substituting principles for rules, what ought to be for what is.2 A positivist judge is most naturally a classicist in his written opinions, a formalist. And when judging persons who live in ghettos, or rural shacks, who have few skills and little work, a positivist judge often keeps a peace that is no peace at all. judges to become, in Grant Gilmore's words, "apostles of reaction and the guardians of a romanticized, oversimplified past."3 "Stare decisis" -- the strict adherence to precedent -- can in the hands of such judges take on unreasonable, aesthetic force.. States Gilmore: It is highly appropriate that-the problems of labor organizationPositivism, thus, has unavoidable implications for judges or writers. Positivism "subsides" at the point where explicitly moral legal philosophies -- utilitarianism, natural rights -- are strongest: the description of the gap between what is and what ought to be.5 Its aesthetic tilt is toward the classical and formal, descriptions of legal principles rather than evocations of situations. At its heart, this distinction is even more basic than whether or not a judge should be a judicial activist. Rather it strikes at a fundamental duty of a judge, and indeed that of all public officials: to teach. When a judge's opinion, no matter what philosophy it is rooted in, neglects to describe the per- sonal and social elements that gave rise to the legal dispute and neglects to make his decision somehow consonant with that evidence the decision's words can be lank and lifeless and, finally, uninformative. Professor John Noonan writes that teaching is the main activity of appellate judges: Teaching is, necessarily, person to person, informing and evoking.Perhaps the reason why so many judicial decisions fail to teach the public, except that small percentage of persons, lawyers, police, teachers, who have a professional interest in them, is that legal writing shares a formalist malaise that periodically affects other creative disciplines7 and can best be summed up as a flood of classicism and a trickle of romanticism.8 Professor Noonan's 1977 study, Persons and Masks of the Law, approaches this problem from the direc- tion of evidence and what facts should or should not be legally relevant. It is Noonan's argument that law is a rule ridden discipline in which all too often legal rules become "ways of classifying individual human beings so that their humanity is hidden and disavowed."9 Noonan calls on a famous passage from Mark Twain's Huckleberry Finn to illustrate how a legal construct -- in this case the idea of "property" as a legal rule which condoned slavery -- can become a mask which hides the moral worth of each person: ... (A)unt Sally asks Huck if the explosion of a steamboat hasNoonan's most fascinating example of how legal rules can "mask" or exclude personal plight is his re-examination of Benjamin Cardozo's 1928 decision in Palsgraf v. Long Island Railroad Company,11 perhaps this Century's most famous tort case. In a bizzarre, unpredictable accident, actions by railroad employees led to the serious injury of Mrs. Palsgraf. Railroad employees helping a traveler, dislodged a plain package; it fell; fireworks in the package exploded; and distant scales toppled on Mrs. Palsgraf. Cardozo held that she would not recover damages. "The risk reasonably to be perceived," Cardozo wrote, "defines the risk to be avoided." Professor Noonan's careful research revealed personal facts that until now were hidden by Cardozo's rule. Helen Palsgraf lived in a basement flat, paid her rent in part by doing janitorial work, spoke broken English, was raising alone her two children on $416 a year earned as a janitor. At the time of the accident she was 43. It was a hot August afternoon. She and her two children were on their way to the public beach. After the accident, in addition to her injuries, she stuttered. Contrast Mrs. Palsgraf's situation with that of the Long Island Railroad. Its total assets were valued at $114 million. Net income from railroad operations was just over $4 million. In 1924 the railroads of the United States killed 6,617 persons and injured 143,739 persons. In the triumphant impartiality of rule of law, Cardozo required Mrs. Palsgraf to pay the costs of her appeal -- $350, nearly a year's salary. His opinion became Section 281 of the Restatement of Torts. It is Noonan's point that if courts embrace a different standard of relevancy, one that had revealed the day-to-day life of Helen Palsgraf -- her poverty, lack of opportunity -- perhaps a more sympathetic rule might have been arrived at. The Palsgraf decision is obviously accomplished and well crafted. Cardozo in Law and Literature (1930) has written at length on the literary aspects of legal decisions. At one point he comments that "the sordid controversies of the litigants are the stuff out of which great and shining truths will ultimately be shaped." Yet, such a description conjures up a cold and sterile art, autoletic in its sensibilities and severed from the world of pain and sorrows. Certainly that can describe the Palsgraf decision. This need not be the case. Substantively and formally, the legal decision can share a close affinity to the art of novelists, poets, essayists -- any writer who must fuse fact and drama. In a very interesting dialogue created by Professor Jon G. Deutsch, the idea is proposed that an effective legal decision -- one with precedential value -- must act as a dramatic metaphor. It must represent daily life, described in terms of law: Q. You further argue that precedents can be defined as con-This aesthetic dimension of judicial decisions is largely ignored when the problem is raised of just how activist a judge should or should not be. Professor Gilmore does not even consider it when he describes the dilema of judges who were faced with cases involving slavery: What is a judge to do when in his judicial capacity, he is required Judges do have one additional choice. Perhaps it is even a minimal obligation shared by all judges. Whether he counts himself an adherent of positivism, natural law, utilitarianism, or whatever, a judge can always in his decisions describe the world as it is and as it perhaps ought to be. The decision need not demand his moral convicitions but it can educate the public as to his concerns. This option seems largely ignored. Why? An important reason is that the aesthetic form of judicial opinions does not seem to accom- modate it. What general formal approach14 could be used in the occasional "hard"15 cases which confront a judge with a moral dilemna? It should be a form or structure that promotes both classical and romantic understanding yet also allows a decision to serve its necessary function as a legal precedent16 -- the legal decision as drama. What could be a model for such an aesthetic form? One idea is to combine both the dynamics of the jury trial and the poetic structure of the sonnet. be treated separate from the prevailing legal rule, then the dynamics of the jury trial offer an admirable start to determining the aesthetic form of the judge's written decision: A. The relevant facts are presented to the jury; B. The attorneys' summations to the jury will often express the personal and moral issues that they hope the jury will grapple with; C. The judge informs the jury of the legal rules it must consider; and D. The jury resolves facts, character, moral and legal rules in a verdict. However, the usefulness of this model is limited. Even if a judge were inclined to base his decision at least in part on personal or moral grounds rather than a traditional legal rule, such a conclusion should be clearly expressed. A jury's decision, in which law and fact and morals can be mixed in inarticulated portions, fails to do this. Further, when a judge writes a decision there is the additional option, very important but little used, of basing his conclusion on the traditional rule but questioning the moral wisdom of that rule. The model of a jury trial, then, is not a complete guide. At this point, a time honored strategy of poets provides assistance. The English or Shakespearean sonnet17 is made up of three quatrains of four lines and a concluding two line couplet. The lines are rooted in iambic pentameter, a measure of potentially great clarity. This sonnet form allows the writer to closely examine three different aspects of a problem and then, in the concluding couplet, to resolve (or declare insolveable) that problem. This structure is highly formal, even artificial, yet it has earned an enduring popularity because it offers poets and readers an intellectually and emotionally rewarding way to delve into the world. The sonnet allows the writer to immerse himself in the facts and issues of a particular conundrum but to then, in the concluding couplet, somewhat separate himself. In effect, the writer can place himself outside the facts and feelings examined and thereby more forcibly and clearly convey his conclusions to the reader.18 Consider William Shakespeare's wonderful Sonnet XXX. For three quatrains the writer is assaulted by the regrets, lost loves, sad grievances of the past. It is only in the final, rhymed couplet, that a friend- ship of the present brings him solace: When to the sessions of sweet silent thought Thus, if combining the dynamics and dramatics of the jury trial with the general structure and progression of the sonnet, an aesthetic approach is sug- gested whereby a judge, no matter what his personal philosophic persuasion, might treat in a persuasive, educational way both the legal dispute and its moral implications. The decision would have the following form: A. Description of the dispute: The importance of this suggested structure is that it offers the judge an aesthetic form which can accommodate statements of the more dramatic, sympathetic, facts in the case, especially one in which the litigants are poor. As discussed above, such facts are often thought to be legally irrelevant; but now, in anti- cipation of the judge's concluding remark, they become intrinsic and important. Thus, this format can be seen as a way of forwarding the concerns voiced by Professor Noonan in his call for an unmasking of litigants by an expansion of legal relevancy. aesthetic problem facing a judge who follows a legal rule yet believes perhaps the litigants have been unfairly treated. Rodriguez is the leading case on the inequities that can arise from financing a public school system from property taxes. A property rich community can have significantly better financed schools than a ghetto community in the same city. In his decision, Justice Powell's lengthy description of the facts makes no attempt to describe the Demetrio Rodriguez family or to convey the realities of being a poor Mexican-American in Texas. The plight of Rodriguez is effectively masked by the Court's complex, two-tier 14th Amendment equal protection argument. This case cries out for dramatization. Justice Powell admits that if education were a fundamental right or if being poor quali- fied the plaintiffs as a "suspect class," then strict judicial scrutiny would have found theTexas school finance formula to be unconstitutional. However, Powell neglects to "unmask" the Rodriguez family and instead says simply that if reform is to be had, it is the responsibility of state legislature, not the Supreme Court. If Powell had adopted the aesthetic format suggested above he could have reached the same decision but also could have "publicized" the facts which dramatized the effects of deficient education and the lot of the Mexican-American poor in underfinanced schools. Such a decision could then have been read in newspapers by voters or read aloud by state legislators as they stood to debate, as many did in the years following Rodriguez, for a more generous school financing system. The opportunity for a truly educational decision was achingly present. It was not taken. Love," poet A. H. Auden characterized such an approach: Yet law-abiding scholars write;3. Gilmore, G., The Ages of American Law 63 (1977). 4. Id. at 63. 5. See Weinreb, L., Law as Order, 91 Harv L. Rev. 944 (1978). 6. Noonan, J. Persons and Masks of the Law 12-13 (1977) (hereinafter cited as "Persons"). 7. Modern music and art are often illustrative of this formalist pitfall. George Steiner, in Language and Silence (1967) wrote: In order to achieve a kind of total integrity and self containment,One of the most entertaining examples of how theory can overwhelm feeling in a discipline is Tom Wolfe's critique of modern art, The Painted Wood (1.976): What I saw before me was the critic-in-chief of the New York Times8. See Bodenheimer, E., Classicism and Romanticism in the Law, 15 UCLA L. Rev. 915 (1968): But the classicial image of the legal order as a system of rules,Robert Pirsig's, Zen and the Art of Motorcycle Maintenance (1975) makes a similar point both formally and explicitly. This is basically a philosophic essay driven by the tears and smiles and dangers such tracts almost always avoid. At one point Pirsig writes: The Whole structure of reason9. Persons at 19. 10. Id. at 11. 11. 162 N.E. 99 (1928.). 12. Deutsch, J., Law As Metaphor: A Structural Analysis of Legal Processes, 66 Geo. L. J. 1346 (1979). 13. Gilmore, G., The Ages of American Law 37-38 (1977). 14. This importance of adopting a specific aesthetic form for the different kinds of judicial decisions was emphasized by Cardozo in Law and Literature (1930). Form is not something added to substance as a mere protuberant adornment.15. See Dworkin, R., Taking Rights Seriously 81-130 (1977). Dworkin uses the term "hard" cases in a much narrower fashion that envisioned by this essay. Referred to here is any case in which serious moral issues are raised which deserve debate either because of particularly significant facts presented by the case or because the accepted law on the issue is believed by the judge to be misguided. 16. This attempt to describe a formal approach to a certain kind of case is not meant to slight the great stylist gifts of many of our jurists. William 0. Douglas was often a master stylist. In his decision of Griswold v. Connecticut 381 U. S. 479 (1964), for example, he advanced a new constitutional theory through a literary symbol that greatly increased its power. The Constitution as sun, the nourisher of democracy: "The foregoing cases suggest that specific guarantees in the17. See generally Shaprio, Beum, A Prosody Handbook 135-140 (1965). 18. This structural distancing of oneself from the idea is especially important in legal analysis. In The Legal Imagination (1973), White states that in order to control the legal language so that it does not determine the shape and meaning of what is said, a position must be taken "outside" it. "The nature of your inherited language shapes your task as a writer much as marble or steel shapes that of the sculptor.... 11 At 82. 19. 411 U. S. (1973). |
