The Law/Justice Dichotomy

1. The Law/Justice Dichotomy Teaching Students to Make Persuasive Arguments through Embracing the Justice in the Law Lisa T. McElroy Dean of Legal Skills and Visiting Assistant Professor of Law 508-998-9600 x 140 * lmcelroy@snesl.edu www.lisamcelroy.net

2. Mural on the Exterior of Thomas M. Cooley Law School, Lansing, Michigan (Banner hanging on the outside of Cooley Law School in Lansing, Michigan)

3. Justice “Are laws to be enforced simply because they were made?” - Henry David Thoreau, A Plea for Captain John Brown 30 (1859) Law “America is a nation of laws . . . The law is not always an easy friend, because the law does not play favorites. But for those who seek justice in a society of responsible citizens, the law will always be an ally.” -New York Mayor Edward I. Koch, Address at Gracie Mansion (Sept. 7, 1981), available atTranscripts of Speeches by Koch and Regan on the Westway ProjectHere, N.Y. Times, Sept. 8, 1981, at B7. Equal Justice Under Law

4. Equal Justice Under Law • Exchange between Judge Learned Hand and • Oliver Wendell Holmes: • Hand: “Do justice, sir.” • Holmes: “That is not my job. My job is to apply the law.” • Judge Robert Bork, The Tempting of America: The Political Seduction of the Law (New York: Touchstone, 1990), at 6.

5. Making Persuasive Arguments From a Legal Standpoint • Will often be advanced by a criminal defendant (“You have to apply the Rules of Criminal Procedure, or the Constitution, or the statutory language, to my case, even if you don’t like the result.”) • Defendants in domestic violence cases (Davis v. Washington and Hammond v. Indiana, companion cases now pending before the United States Supreme Court.)

6. Making Persuasive Arguments From a Legal Standpoint • Will often be asserted by the defendant in a civil case (“We followed the letter of the law.”) • Environmental cases: (EPA guidelines) • Special education cases: (“We provided some educational benefit.”) • Medical malpractice: “I complied with standards of the profession, so I can’t be sued even though the baby is brain-damaged.”

7. Making Persuasive Arguments From a Legal Standpoint • Will often come up when the arguing party wants to maintain the status quo (“This is what the law is and what it should continue to be.”) • Notice is important in the law, so we shouldn’t just change it willy-nilly, even if the facts are compelling. • Statutory construction: (“The legislature has had an opportunity to act and has not; therefore, it has acquiesced to the courts’ interpretation.”)

8. Making Persuasive Arguments From a Legal Standpoint • Will also be important in a case of first impression (“What does the law say, exactly?”) • Will ask the court to disregard the legislative history and go with the plain meaning of a statute (very Scalia-esque). • What does it mean to be “closely related” for purposes of NIED? See Hislop v. Salt River Project Agric. Improv. and Power Dist., 5 P.3d 267 (Ariz. App. 2000).

9. Making Persuasive Arguments From a Legal Standpoint Will often argue that the law and its consistent application are inherently just.

10. Making Persuasive Arguments From a Justice Perspective • Will often be made by the prosecution in a criminal case (“If this person is definitely guilty, why do we have to apply or even care about the rules?”) • Police not following procedure. • Jury nullification.

11. Making Persuasive Arguments From a Justice Perspective “Last night in Iraq, United States military forces killed the terrorist al-Zarqawi. . . . special operation forces, acting on tips and intelligence from Iraqis, confirmed Zarqawi's location, and delivered justice to the most wanted terrorist in Iraq. Zarqawi was the operational commander of the terrorist movement in Iraq. He led a campaign of car bombings, assassinations and suicide attacks that has taken the lives of many American forces and thousands of innocent Iraqis. . . Now Zarqawi has met his end, and this violent man will never murder again.” Source: Bush speech, June 8, 2006, as released by the Associated Press.

12. Making Persuasive Arguments From a Justice Perspective The problem with making a justice-based argument is that different people have a different idea of what constitutes justice.

13. Making Persuasive Arguments From a Justice Perspective • Will often be made by a plaintiff in a civil case (“It’s only fair that I should recover in light of the harm this person has done to me.”) • Personal injury or med mal action (especially with respect to punitive damages). • Breach of contract claims (especially in a David and Goliath situation).

14. Making Persuasive Arguments From a Justice Perspective • Will often ask court to depart from stare decisis in order that the court might do “what’s right.” • (“Although this issue has been decided, the court erred in its earlier decision. A more just result would be . . .”). • May ask court to look to the Restatement, a majority rule, public policy concerns that have changed, etc.

15. Making Persuasive Arguments From a Justice Perspective • Will also often come up in a case of first impression (“This court should use this case to establish fair and just precedent.”) • Child abuse cases: “You should construe the mandatory reporting statute broadly because its purpose is to protect children . . .” • May choose to look to legislative history in a statutory claim. • Will employ rule parameters in a common law claim and argue that extension of the rule is/is not just.

16. Making Persuasive Arguments From a Justice Perspective Will often argue that the law is inherently unjust or would be unjustly applied in these circumstances.

17. Sports: A great, accessible example* The rarest medal in the Olympics wasn't created from gold, but a bolt. The story begins on a cold, winter afternoon in Innsbruck at the 1964 Olympic two-man bobsled competition. A British team driven by Tony Nash had just completed its first run, which had put them in second place. Then they made a most disheartening discovery. They had broken a bolt on the rear axle of their sled, which would put them out of the competition. At the bottom of the hill, the great Italian bobsled driver Eugenio Monti, who was in first place, heard of their plight. Without hesitation, Monti removed the bolt from the rear axle of his own sled and sent it to the top of the hill. The British team affixed it to their sled and then completed their run and won the gold medal. Monti's Italian team took the bronze. When asked about his act of sportsmanship, Eugenio Monti deflected any praise, saying, "Tony Nash did not win because I gave him a bolt. Tony Nash won because he was the best driver." The story of Monti's selfless act spread. And because of it he was given the first De Coubertin Medal for sportsmanship. The award, named after the founder of the modern Olympics, is one of the noblest honours that can be bestowed upon an Olympic athlete. In other words, the most precious hardware any Olympian can own * * http://www.olympic.org/uk/passion/humanity/monti_uk.asp .

18. Justice (Tae-young) Olympic judges incorrectly scored Yang’s parallel bars routine out of a possible 9.9 instead of out of 10.0. A review of the tape verified that the judges erred. Had he been given the correct start value, Yang would have won the gold, and Hamm would have gotten the silver. Best gymnast should get the gold. The win shouldn’t be based on a technicality, but on sports ability and performance. Paul Hamm/International Federation of Gymnastics (“FIG”) v. Yang Tae-young Law (Hamm) • Hamm’s position was based on an International Federation of Gymnastics (“FIG”) rule that says, in a multi-apparatus competition, any scoring protests must occur before the gymnasts move on to the next apparatus. • Despite the fact that the erroneous start value was clearly posted when Yang did his bars routine, Yang and his coaches did not protest his score until the end of the competition. Therefore, Yang should not have received the gold medal because he did not comply with FIG rules. • Rules have important role/value in sports.

19. Questions to ask: Hamm/Yang 1) Is Hamm right? Should the FIG rule be enforced in Yang’s situation? - or - 2) Is Yang right? Should the FIG rule be set aside so that Yang can share Hamm’s victory? 3) Should the FIG rule be changed? - Might the FIG rule might be a good one, in general? Why might the FIG rule not be a good one? 4) If a rule may be unfair as applied, does the rule still have value? - Should exceptions be made as situations arise? Why or why not?

20. In this civil rights action, a mother sued on behalf of her children, who were denied entrance to an amusement park because they were African-American. The federal district court held that the accommodations provision of the Civil Rights Act of 1964 did not expressly include (and had not been intended to include) amusement parks. Miller v. Amusement Enterprises, Inc.259 F. Supp. 523 (E.D. La. 1966)

21. Law (amusement park) 42 U.S.C.A. § 2000a (1964) “Equal access: All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. . . . Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action . . .3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment.” Fun Fair isn’t covered under the statutory definition, so the park doesn’t have to let the Millers in. Justice (Miller family, civil rights movement) Kennedy’s goal was for all Americans to have access to public places. Discrimination is inherently unjust. The amusement park shouldn’t be treated any differently than a restaurant, a hotel, etc. (accommodations that are specifically covered). Miller v. Amusement Enterprises, Inc.259 F. Supp. 523 (E.D. La. 1966)

22. Miller v. Amusement Enterprises, Inc.394 F.2d 342 (5th Cir. 1968) The Fifth Circuit reversed. “We are not only dealing with the language of the statute, but we must look as well to the logic of Congress and the broad national policy which was evidenced by its enactment. Our system does not favor mechanical jurisprudence; it seeks to find the purpose and spirit of a statute and the intention of its makers.” Id. at 353 (emphasis added).

23. Miller v. Amusement Enterprises, Inc.,394 F.2d 342 (5th Cir. 1968) Is judicial activism – the effort to use the courts as arbiters of social justice – inherently just?

24. Scalia opinion holding that the Sixth Amendment’s Confrontation Clause requires actual confrontation. Therefore, even reliable out-of-court statements by witnesses to crimes are inadmissible if they qualify as “testimonial.” See alsoDavis v. Washington and Hammond v. Indiana. Crawford v. Washington541 U.S. 36 (2004)

25. Law (Batterers) Under the Sixth Amendment to the United States Constitution, criminal defendants have the right to confront witnesses against them. We must apply constitutional guarantees to all people, regardless of the desirability and/or perceived correctness of the outcome. Justice (State) Many victims of domestic violence make statements to police and medical personnel at the time of the crime, then refuse to testify against the batterer at trial (often because the batterer has threatened to hurt them again if they do). If excited utterances and statements made for purposes of medical treatment are no longer admissible in many domestic violence situations, many batterers will go free and will likely batter again. Crawford v. Washington541 U.S. 36 (2004)

26. Crawford v. Washington541 U.S. 36 (2004) Is judicial restraint – a philosophy of commitment to strict interpretation and application of the law – inherently just?

27. Dr. Corday, a skilled surgeon, agrees to transplant a heart from an HIV-infected donor to an HIV-infected donee, in violation of a law that prohibits donation/transplant of HIV-infected organs. An amendment to the law which would allow the transplant has been passed by the legislature but has not yet been signed by the governor. Despite the fact that both the donor and the donee consent, Corday is fired for violating the law and exposing the hospital to liability. Elizabeth Corday, M.D. v. County HospitalNBC’s hit program, ER(Try Carter, episode first airing October 14, 2004)

28. Law All people are bound by follow the law, whether they like it or not. County Hospital is concerned with liability. What will happen if doctors violate the law any time they feel like it? Justice Where’s the harm? The donee has HIV-disease and has consented. What’s more, the donee can’t get an organ from anyone else, as his HIV status puts him at the bottom of the priority list. Elizabeth Corday, M.D. v. County HospitalNBC’s hit program, ER(Try Carter, episode first airing October 14, 2004)

29. Elizabeth Corday, M.D. v. County HospitalNBC’s hit program, ER(Try Carter, episode first airing October 14, 2004) Is an individual’s decision to act as she would like the law to be - not as the law is - inherently just?

30. State v. Serial KillerJilliane Hoffman, Retribution (2004) A prosecutor knows for a fact that a criminal defendant is guilty of a terrible murder. However, the search through which the dead body is found is illegal, because it was based on an anonymous tip, and the tip was not specific enough to constitute probable cause. The prosecutor colludes with police to make up a story which, if true, would make the search legal and the evidence recovered thereby admissible.

31. State v. Serial KillerJilliane Hoffman, Retribution (2004) Law (Criminal defendant) • The exclusionary rule says that evidence obtained in violation of the Fourth Amendment is not admissible against a criminal defendant. • The exclusionary rule applies to everyone, even known serial killers. Justice (State) • The guy’s a serial killer! What harm is there in admitting the evidence? There’s no risk of convicting the wrong person. • Constitution aside, he should pay for his crimes. If we don’t punish him, he’ll go scot free for raping and killing a bunch of young women.

32. State v. Serial KillerJilliane Hoffman, Retribution (2004) Is a lawyer’s decision to disregard the law in the pursuit of justice inherently just?

33. Other Compelling Examples: Property In the middle of a blizzard, a landlord evicts a single mother with three small kids. The tenant has not paid rent for six months.

34. Other Compelling Examples: Contracts After Hurricane Katrina, many homeowners could not collect insurance proceeds because they had not purchased separate coverage for flood damage; therefore, the insurers argued that they were not contractually bound to pay out. They did cover damage caused by wind. Source: http://katrinainformation.org/disaster2/latest/insurance_advice/?printerfriendly=yes

35. Other Compelling Examples: Contracts Statement by insurers: “Prices will increase nationwide, however, if lawsuits succeed in retroactively rewriting insurance contracts to compel property insurance companies to pay the flood damage claims of people who did not buy flood insurance coverage from the National Flood Insurance Program. Generally speaking, standard homeowners and business property insurance policies provide hurricane damage from wind, but do not cover losses from floods. If insurers are compelled to pay huge numbers of flood claims for which they collected no premiums and have no reserves, insurance pricesaround the country will have to rise.” Source: http://www.disasterinformation.org/disaster2/facts/katrina_faq/

36. Other Compelling Examples: Contracts Statement for homeowners: ROBERT MARIONNEAUX JR. (Louisiana State Senator): I would hope that the insurance company would step forward, not argue about whether it was wind or flood damage, make a reasonable assessment of the damage and pay the claim in reasonable short order. Is that going to happen? I doubt it. That's not the way insurance companies work. Source: http://www.pbs.org/newshour/bb/economy/july-dec05/insurance_9-27.html (a NewsHour with Jim Lehrer) Source:

37. Other Compelling Examples: Civil Procedure* “If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect.”Wis. Stat. Ann. 801.15(2)(a) (West 1994). • If the attorney is neglectful, then a client’s entire case can be dismissed for procedural rather than meritorious reasons. * Many thanks to Alison Julien and Jessica Price of Marquette Law School for providing me with this example.

38. Other Compelling Examples: Torts Former girlfriend brought tort action against former boyfriendwho had secretly videotaped their sexual relations and shown the tape to his friends. However, the Texas Supreme Court held that the tort of negligent infliction of emotional distress did not exist in Texas absent the breach of some other legal duty, precluding recovery for the girlfriend. Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993).

39. Still More Useful Examples: Torts Police were not liable in tort for failing to protect stalking victim, even when she called them and told them of overt threats of imminent violence (or when they failed to prevent other crimes against individuals). Riss v. City of New York, 240 N.E.2d 860 (N.Y. 1968).

40. Still More Useful Examples: Constitutional Law In a case similar to Riss, the United States Supreme Court ordered a woman’s claim dismissed where police failed to enforce a restraining order and her ex-husband kidnapped and murdered her three children. Castle Rock v. Gonzales, 125 S. Ct. 2796(2005). While the Court called the facts of her case “undeniably tragic,” it held that Ms. Gonzales had no procedural due process property right in police enforcement of the protective order. Id. at 2803.

41. Still More Useful Examples: Family Law A court orders a mother, Dr. Elizabeth Morgan, to allow her ex-husband, Dr. Eric Foretich, to visit with their daughter, Hilary. The mother learns that the father has probably sexually abused Hilary and refuses to let him see her.  She hides Hilary and then serves25 months for contempt of court.  She is only released after Congress passes a bill specifically aimed at her situation.  Source: Elizabeth Morgan Act, D.C. Code Ann. § 11-925 (2001) (overruled as an unconstitutional bill of attainder at 351 F.3d 1198 (D.C. Cir. 2003)).

42. Still More Useful Examples: Family Law Evan Scott, a three-year-old in Florida, had lived with “adoptive” parents for his entire life. Under the law in effect when he was born, his biological father could and did sue for custody months after Evan’s birth. After a long legal battle, Evan was removed from his adoptive parents’ home and sent to live with biological mother (who had intervened to counter the father’s petition).

43. Law Under Florida law, a judge decided that the biological parents’ rights trumped Evan’s and the Scotts’. The legislature responded by passing a law requiring fathers to file notice that they opposed the adoption within 30 days after the birth of the child. Fla. St. 63.062 (West 2003). Justice Best interests of the child Parents who love him and have cared for him since birth Shouldn’t these decisions be made by a single judge and very quickly? Kids have a right to stability. Source: http://www.adoption.com/includes/frame.php?url=http://www.usatoday.com/news/opinion/2005-01-23-custody-our_x.htm Still More Useful Examples: Family Law

44. Still More Useful Examples: Criminal Law In an episode of L.A. Law, a baby is killed. Both parents are tried for her murder. However, each parent points the finger at the other and thereby establishes reasonable doubt. The episode makes abundantly clear that one parent did kill the baby, but we just don’t know which one. However, because of the reasonable doubt standard, both go free. Justice Swerved (episode first airing March 29, 1990). • We might very well see this strategy used in the Duke lacrosse case.

45. Persuasive Arguments May Choose An Approach – Or May Argue Both! Law Justice