Posted by: captainfalcon | August 25, 2010

How is one to “do justice” while preserving an administrable, stable body of simplifying rules?

The answer from Karl Llewlellyn’s “The Current Recapture of the Grand Tradition:”

The formula is simple to state, and not hard to apply. It is this: As you size up the facts, try to look first for a significant life-problem-situation into which they comfortably fit, and only then let the particular equities begin to register; so that when the particular equities do begin to bite, their bite is already tempered by the quest for and the feel for an appropriate rule that flows from and fits into the significant situation-type.

This kind of language means little by ear, or in the abstract. Let me try both to illustrate and to save time by taking a case… MacPherson v. Buick. That was a case in which the defendant [Buick] not only had done every normal thing that in the then state of the art there was to do, but also had an astounding record of experience to show both its care and the soundness of its judgment. [Nevertheless an accident occurred because one wheel of a Buick car was not in sound condition.] If you take the party equities as a base-line and if you take ‘fault’ of any kind as a principle, that pretty well cleans up the plaintiff…[But] what Cardozo did…was to take a significant type-situation, first, and to take these individual equities only against that background.

[Thus] instead of individual parties doing their best…he set up a significant type-situation: consumer-purchase in a community which has to rely on increasingly un-understandable basic technology. That type situation, seen in that way stepped up the aspect of reliance and stepped down the aspect of fault. And the typical situation, of course, included the need for marketing the product through middlemen. Thus Cardozo held that Buick Motor Co. could be sued by the injured plaintiff though plaintiff had had no direct contractual dealing with Buick, a departure from past case doctrine, and held that Buick was negligent.

You will find no such overall picture sharply expressed in the opinion. What the opinion does is to feel that picture. Indeed, it is not the job, even of a great judge, to get fully explicit, all at once, about great social change. His job is to feel what he ca, and to see what he can, and to say way he can. But his method has to be to reach, first, for the significant type-situation.


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