Hard cases make bad law is an adage or legal maxim meaning that an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases. In other words, a general law is better drafted for the average circumstance as this will be more common.[1]
The original meaning of the phrase concerned cases in which the law had a hard impact on some person whose situation aroused sympathy.[2]
The expression dates at least to 1837. It was used in 1904 by US Supreme Court Justice Oliver Wendell Holmes Jr. Its validity has since been questioned and dissenting variations include the phrase "Bad law makes hard cases", and even its opposite, "Hard cases make good law".
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The Law You Won't Be Told
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Transcription
# The Law You Won't Be Told On a Jury you know your options: guilty, or not. But there's another choice that neither the judge nor the lawyers will tell you -- often because they're not allowed to and also it might better if you *don't* know. This video will tell you that third choice, but be warned: simply *watching* may prevent you from ever serving on a jury -- so this is your last chance to hit the pause button before you learn about... Jury nullification: when the defendant is 100% beyond-a-reasonable-doubt guilty *but* the jurors *also* think he shouldn't be punished. The jury can nullify the law and let him go free. But before your on your next jury and yell 'Null! Booya!' at the judge you should know that just talking about jury nullification in the wrong circumstances can get you arrested. Though a video such as this one, simply acknowledging the *existence* of jury nullification and in *no way advocating* it is totally OK. And, while we're at it: *(CGP Grey is not a lawyer, this is not legal advice it is meant for entertainment purposes only. Seriously, guy, don't do anything in a court of law based on what an Internet Video told you. No joke.)* So why can't you do this? It's because nullification isn't *in* the law †, but exists as a logical consequence of two other laws: First: that juries can't be punished for a 'wrong' decision -- no matter the witnesses, DNA, or video proof show. That's the point of a jury: to be the decider. and Second: when a defendant is found not-guilty, that defendant can't be tried again for the same crime ‡. So there *are* only two stated options: guilty or not, it's just that jury nullification is when the words of the jurors don't match their thoughts -- for which they can't be punished and their not-guilty decision can't be changed. These laws are necessary for juries to exist within a fair system, but the logical consequence is... contentious -- lawyers and judges argue about jury nullification like physicists argue about quantum mechanics. Both are difficult to observe and the interpretation of both has a huge philosophical ramification for the subject as a whole. Is nullification the righteous will of the people or an anarchy of twelve or just how citizens judge their laws? The go-to example in favor of nullification is the fugitive slave law: when Northern juries refused to convict escaped slaves and set them free. Can't argue with that. But the anarchy side is Southern juries refusing to convict white lynch mobs. Not humanity at its best. But both of these are juries nullifying the law. Also juries have *two* options where their thoughts may differ from their words. Jury nullification usually refers to the non-guilty version but juries can convict without evidence just as easily as they can acquit in spite of it. This is jury nullification too and the jurors are protected by the first rule, though the second doesn't apply and judges have the power to overrule a guilty verdict if they think the jurors are… nt the best. And, of course, a guilty defendant can appeal, at least for a little while. Which makes the guilty form of jury nullification weaker than the not-guilty kind. Cold comfort, though. Given the possibility of jurors who might ignore the law as written, it's not surprising when picking jurors for a trial, lawyers -- whose existence is dependent on an orderly society -- will ask about nullification, usually in the slightly roundabout way: "Do you have any beliefs that might prevent you from making a decision based strictly on the law?" If after learning about jury nullification you think it's a good idea: answer 'yes' and you'll be rejected, but answer 'no' with the intent to get on the jury to nullify and you've just committed perjury -- technically a federal crime -- which makes the optimal strategy once on a jury to zip it. But This introduces a problem for jurors who intend to nullify: telling the other 11 angry men about your position is risky, which makes nullification as a tool for fixing unjust laws nation wide problematic. (Not to mention about 95% of criminal charges in the United States never make it to trial and rather end in a plea bargain, but that's a story for another time.) The only question about jury nullification that may matter is if jurors should be *told* about it and the courts are near universal † in their decision: 'no way'. Which might seem self-interested -- again, courts depend on the law -- but there's evidence that telling jurors about nullification changes the way they vote by making evidence less relevant -- which isn't surprising: that's what nullification *is*. But mock trials also show sympathetic defendants get more non-guilty verdicts and unsympathetic defendants get more *guilty* verdicts in front of jurors who were explicitly told about nullification compared to those who weren't. Which sounds bad, but it also isn't difficult to imagine situations where jurors blindly following the law would be terribly unjust -- which is the heart of nullification: juries judge the law, not solely evidence. In the end righteous will of the people, or anarchy, or citizen lawmaking -- the system leaves you to decide -- but as long as courts are fair they require these rules, so jury nullification will always be with us.
Discussion
The maxim dates at least to 1837, when a judge, ruling in favor of a parent against the maintenance of her children, said, "We have heard that hard cases make bad law."[3] The judge's wording suggests that the phrase was not new then.
Oliver Wendell Holmes Jr. made a utilitarian[clarification needed] argument for this in his judgment of Northern Securities Co. v. United States (1904):[4]
Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance ... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.
Holmes's dissenting opinion in the case, which applied the Sherman Antitrust Act to the securities company, has been described as a reaction to President Theodore Roosevelt's wish to dramatize the issues of monopolies and trusts.[5]
The legal scholar Glanville Williams questioned the adage's usage in 1957, writing, "It used to be said that 'hard cases make bad law'—a proposition that our less pedantic age regards as doubtful. What is certain is that cases in which the moral indignation of the judge is aroused frequently make bad law."[6] Bryan A. Garner calls the phrase a cliche; while mentioning Williams's disparagement, he asserts that it remains in frequent use, "sometimes unmeaningfully".[6]
In Re Vandervell's Trusts (No 2), Lord Denning stated the following, after one of the barristers in the case had asserted that the issues should be resolved in his client's favour, given that "hard cases make bad law":
Mr. Balcombe realised that the claim of the executors here had no merit whatsoever. He started off by reminding us that "hard cases make bad law." He repeated it time after time. He treated it as if it was an ultimate truth. But it is a maxim which is quite misleading. It should be deleted from our vocabulary. It comes to this: "Unjust decisions make good law": whereas they do nothing of the kind. Every unjust decision is a reproach to the law or to the judge who administers it. If the law should be in danger of doing injustice, then equity should be called in to remedy it. Equity was introduced to mitigate the rigour of the law. But in the present case it has been prayed in aid to do injustice on a large scale—to defeat the intentions of a dead man—to deprive his children of the benefits he provided for them—and to expose his estate to the payment of tax of over £600,000. I am glad to find that we can overcome this most unjust result.
Bad law makes hard cases
The adage's converse, "bad law makes hard cases", has also been used.[7][8][9]
In his discussion of the converse, the jurist John Chipman Gray saw legal professionals as subject to the temptation of valuing the "logical coherency of the system itself" over the well-being of individuals.[10] A more recent discussion of the adage and its converse sees cases that have received special attention as the recipient of more care.[7]
Hard cases make good law
The legal scholar Arthur Linton Corbin, writing in 1923, reversed the adage in an article entitled "Hard Cases Make Good Law":
When a stated rule of law works injustice in a particular case; that is, would determine it contrary to 'the settled convictions of the community,' the rule is pretty certain either to be denied outright or to be undermined by a fiction or a specious distinction. It is said that 'hard cases make bad law;' but it can be said with at least as much truth that hard cases make good law.[11]
See also
References
- ^ Hayek, F. A. (2013). Studies on the Abuse and Decline of Reason: Text and Documents. Routledge. p. 63. ISBN 978-1-136-60437-9.
- ^ MacCormick, Neil (28 July 2005). Rhetoric and The Rule of Law: A Theory of Legal Reasoning. OUP Oxford. p. 65. ISBN 978-0-19-101878-7.
- ^ Hodgens v. Hodgens (1837), quoted in Fred Shapiro, The Yale Book of Quotations (2006).
- ^ Davis, Michael; Stark, Andrew (2001), "Conflicts in Rulemaking: Hard Cases and Bad Law", Conflict of interest in the professions, Oxford University Press, ISBN 9780195344073
- ^ Letwin, William (1981). Law and economic policy in America: the evolution of the Sherman Antitrust Act. University of Chicago Press. pp. 182–183. ISBN 978-0-226-47353-6.
- ^ a b Garner, Bryan A. (2001). A dictionary of modern legal usage. Oxford University Press. p. 398. ISBN 978-0-19-514236-5.
- ^ a b May, Larry; Brown, Jeff (2009). Philosophy of law: classic and contemporary readings. Wiley-Blackwell. p. 25. ISBN 978-1-4051-8387-1.
- ^ The Law journal reports. E.B. Ince. 1878. p. 206.
- ^ Pennsylvania Bar Association (1917). Report of the Annual Meeting of the Pennsylvania Bar Association. The Pennsylvania Bar Association. p. 235.
- ^ Gray, John Chipman (1909). The nature and sources of the law. Columbia University Press. p. 263.
- ^ Corbin, Arthur Linton (1923). "Hard Cases Make Good Law" (PDF). Yale Law Journal. 33 (1): 78–82. doi:10.2307/788461. JSTOR 788461. Retrieved 22 February 2018.
This page was last edited on 18 March 2023, at 12:37