But merely judgment

BY ALLISON WHITE

The first weeks of 1L year mark the path of a student’s career, teaching the student not only the basic precepts of the law but also conveying introductory examples of the attitudes of Harvard Law School faculty toward the law.

Students hear of their duties, of the lawyer’s role in society. They’re told to look around and be aware that they learn the law next to tomorrow’s judges, Senators, and (at the top of the legal hierarchy) law professors.

They are taught many things, but least among these is judicial humility – acknowledgment of the very limited role that the judge was to play in American society under the Constitution.

And that is a damned shame.

The first year of the legal curriculum generally reinforces the image of the judge as, frankly, Philosopher-King. This, as Justice Scalia points out in A Matter of Interpretation, owes to the fact that the first-year classes spring out of the Common Law tradition. Judges assume and exert the power to determine questions of proximate causation, duties of care, promissory responsibilities and so forth. Confronted with all of this, students debate the wisdom of the judge’s decision, they critique and they learn. But always, the student is reminded that, in that corner of the law, the judge’s word is the final arbiter of what is true and fair.

That judge, however, is not the federal judge. The federal judge is not left to determine the law under the statutes and Constitution; he is there to apply the written Constitution and laws. Students are too rarely reminded that Blackmun was not Blackstone (pity that no one reminded Blackmun, either).

My own legal education began on similar footing, of course. But mine began with an added setback. In Civil Procedure, a class outside of the common-law-dominant vein, our first days were fixated not on judicial humility, but on reassertion of judicial power.

We began with U.S. v. Hall (5th Cir. 1972). The casebook set it forth prominently under the heading, “An Opening Case: The Power and Limits of the Courts.” The case dealt with an injunction in a school-desegregation class; Iwon’t repeat the arguments here. That’s what your casebook is for. The case’s overriding theme, however, was the importance of flexible remedial powers: “courts must have the power to issue orders . . . tailored to the exigencies of the situation and and directed to protecting the court’s judgment.”

Whether or not Hall was rightly decided, it leaves students with a distinct lesson: a court’s powers are to be stretched to solve the needs of society on a case-by-case basis.”

Frankly, telling that to a first-week HLS student is like handing car keys and whiskey to a fifteen-year-old boy.

* * *

The Framers devised a system of government where the courts were functionally – and purposefully – impotent. Not purposeless. Impotent. It was summed up masterfully by Hamilton in Federalist 78. These words, framing the power and role of the courts in a more humble light, should precede Hall in any casebook:

“The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments . . . . [T]here is no liberty, if the power of judging be not separated from the legislative and executive powers.”

One-Ls: Please, in your first weeks here, consider a bit of humility before you rush off to solve the world’s problems. You’ve surely already been told of the future senators and judges present among your classmates. You’ll spend a year studying the common law, where the judges were veritable philosopher-kings as they discerned the laws of proximate cause and foreseeable risk. Amidst all of that, please, please read Federalist 78. Remember the limited powers of the Court and the threats to liberty posed by a generation of lawyers to whom those lessons have been largely forgotten. That it takes a Record columnist to deliver this lesson is, indeed, a miscarriage of justice.

Adam White is The Record’s Editorial Page Editor. His column appears weekly. He posts commentary regularly at http://www.white-noize.org.

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