Showing posts with label Learned Hand. Show all posts
Showing posts with label Learned Hand. Show all posts

Sunday, February 25, 2024

Frum invokes Judge Learned Hand on self-doubt to build case for 'uncanceling' Woodrow Wilson

Woodrow Wilson, 1912
Library of Congress
In the March Atlantic David Frum pleaded for the "uncanceling" of Woodrow Wilson and gave a shout out to the great Judge Learned Hand.

Frum exhibited his usual eloquence in pleading for understanding that people are complicated and we ought not throw out the baby with the bathwater. Wilsonianism has guided American foreign policy for a century and has done a lot of good in the world, Frum argued persuasively. One cannot pretend away that legacy in an eagerness to embrace the admittedly ample evidence of Wilson's racism and bigotry.

We ought be wary as well, Frum observed, that right and left both are eager to "cancel" Wilson. The left for his racism, of course. The anti-regulatory right, meanwhile, sees Wilson as a forefather of both globalism and the administrative state. Besides his vision for what would become the United Nations, Wilson signed the Federal Trade Commission Act into law in 1914. With the Chevron doctrine presently withering in the Supreme Court, lefties, be careful what you're canceling.

An aside on the subject of left and right: The Economist published a fabulous opinion piece last week that's a balm for classical liberals such as myself who have been rendered ideologically homeless by the ironic Republican embrace of "the state [as] savior." (Every American libertarian, by which I mean most Americans, should read it, so it's unfortunate that it's paywalled.)

In the course of his reasoned plea, Frum further observed:

We live now in a more polarized time [than Wilson's], one of ideological extremes on both left and right. Learned Hand, a celebrated federal judge of Wilson’s era, praised "the spirit which is not too sure that it is right." Our contemporaries have exorcised that spirit. We are very sure that we are right. We have little tolerance for anyone who seems in any degree wrong.

Hear, hear. The line comes from Hand's famous "Spirit of Liberty" speech in 1944. Read more at Judicature.

Torts students know Learned Hand for his also famous formula to describe rational choice as a weighing of burdens against the risk of loss. Hand was prolific, and his subtle influences can be traced through many fields of American law in the 20th century. Indeed, see The Atlantic in 1961.

Just yesterday, as it happens, I was talking after class with a 1L Torts student about the imperative that legal education empower a student to challenge one's own assumptions. I know what you're thinking, but it was she who made the point. "We should question ourselves," she said. "We should never stop questioning."

Wise woman.

Speaking of wise women, hat tip @ my wife for spying The Economist item.

Incidentally, the cover story of the March Atlantic concerns police response to mass shooting events, focusing on, but definitely not limited to, the Deputy Scot Peterson matter at Marjory Stoneman Douglas High School in Parkland, Florida. In June 2023, Peterson was acquitted on all charges after a trial in which authorities alleged felony child neglect and criminal negligence. In January 2024, a Florida court denied a defense motion to dismiss civil suits by 17 families against Peterson, clearing the matter for trial.

Frum's article is Uncancel Woodrow Wilson, The Atlantic, Mar. 2024 (online Feb. 2, 2024) (subscription).

Monday, May 7, 2018

Mass. supreme court: MIT owed no duty in suicide case

Today the high court of Massachusetts held no duty, as a matter of law, in a wrongful death case of attenuated duty and causation in which the plaintiff sought to hold the Massachusetts Institute of Technology liable in negligence for a struggling student's suicide.  The court left the door open for proof of a special relationship on different facts.

Tort watchers and university counsel near and far have been awaiting the decision in Nguyen v. Massachusetts Institute of Technology, No. SJC-12329 (May 7, 2018).  The November 7 oral argument in the case is online here.
 
A university-student relationship is not completely outside the custodial scope that gives rise to a duty in tort law in K12, the court held; nor is it completely the same.  Rather, the court "must ... take into account a complex mix of competing considerations.  Students are adults but often young and vulnerable; their right to privacy and their desire for independence may conflict with their immaturity and need for protection."

With regard to a suicide risk, reasonable foreseeability is key to the special relationship/duty analysis.  Relevant factors include whether student reliance on the university impeded others who might have rendered aid, as might occur in a student-residential environment; and, from research by emerita Washington & Lee University Law School professor Ann MacLean Massie, the court quoting,

"degree of certainty of harm to the plaintiff; burden upon the defendant to take reasonable steps to prevent the injury; some kind of mutual dependence of plaintiff and defendant upon each other, frequently . . . involving financial benefit to the defendant arising from the relationship; moral blameworthiness of defendant's conduct in failing to act; and social policy considerations involved in placing the economic burden of the loss on the defendant."
In discussing the flexibility of this analysis, Judge Learned Hand's famous BPL test made an appearance (a test customarily directed to breach rather than duty), off-setting the gravity of a suicide by probability, and balancing the result against the burden on the university of employing effective preventive measures.  The court also emphasized the dispositive nature of actual knowledge: "Where a university has actual knowledge of a student's suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student's stated plans or intentions to commit suicide, the university has a duty to take reasonable measures under the circumstances to protect the student from self-harm."

In the instant case, "Nguyen never communicated by words or actions to any MIT employee that he had stated plans or intentions to commit suicide, and any prior suicide attempts occurred well over a year before matriculation."  He also strove to partition his mental health treatment from his academic life.

The court upheld summary judgment for the defendant on the tort claims as a matter of law.

Tuesday, September 12, 2017

Justice Oliver Wendell Holmes, Jr., was kind of a pompous ass


Justice Oliver Wendell Holmes, Jr. (FJC), “the great dissenter,” was kind of a pompous ass.  That probably should not have surprised me, given his birthright in Massachusetts aristocracy.  And that probably should not have been my chief take-away from the book, The Great Dissent (2013) (Amazon; Macmillan), the impressive accomplishment of author and law professor Thomas Healy at Seton Hall Law.  Somehow I am stubbornly surprised every time a person I admire turns out to be no more than human.

The subtitle of The Great Dissent reads, How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America.  That refers to a monumental shift, now legendary in constitutional law, that seemed to have occurred in Holmes’s thinking over the summer of 1919.  In the spring of 1919, Holmes and the Court majority were eagerly doing their part to condemn targets of the First Red Scare, such as labor agitator Eugene Debs, for criminal violation of the post-WWI Espionage Act.  Then in fall 1919, Holmes suddenly turns up in dissent to further convictions.  He used almost the same language, the same rules that he had authored and joined earlier in the year.  But in the fall, with not even a wink at the reader, he seemed to think the words had acquired entirely different meaning.

Partnering with Justice Louis Brandeis, Holmes’s powerful dissents in 1919 and following years outlined a philosophy of free speech that ultimately passed the test of time.  Holmes veritably gushed ideas, such as “clear and present danger” and “marketplace of ideas,” that became benchmark norms in 20th-century civil rights law—not only in the United States but in democracies around the world.

So what happened to Holmes in the summer of 1919?  To answer that question, Healy takes the reader on a spellbinding journey into the social and political dynamics of America’s intellectual class—and last survivors of the Civil War—as they struggled to maneuver the country in a new world order shaped by the ravages of an unprecedented war.

There is an apocryphal answer to the 1919 question.  The free speech analysis that Holmes and Brandeis worked out after 1919 bore a striking resemblance to an earlier proposition advanced by Judge Billings Learned Hand as trial judge in a 1917 case in federal court in New York.  Hand and Holmes knew one another, if not well, and their contrasting judicial philosophies, co-existing in era, frequently prompt comparison by scholars.  So it was once speculated that perhaps Holmes had met with Hand in precisely that summer.  It’s the kind of story that would make an exciting two-man show for the law-and-theater crowd.

As Healy tells it, Hand did play a role, if less direct, in reshaping Holmes’s thinking.  Another figure emerges as a key intermediary in Healy’s narrative, British political scientist Harold Laski.  Laski did interact with Holmes quite a bit, before, during, and after the summer of 1919, and his influence is plain.  Of course the full story is a good deal more complex, and Healy constructs it masterfully.  More than that, I won’t spoil.  Read the book.

Holmes in 1861 daguerreotype.
I was struck by three points of the story, and they all relate to Holmes not really being the paragon of personhood I wish he were.

First, Holmes was an elitist.  He read 50 books in the summer of 1919, Healy recounts.  He was always eager to immerse himself in the rich intellectual legacy of the Greek philosophers.  He was much less eager to take up Justice Brandeis’s invitation to visit textile mills in the summer of 1919 to witness for himself the unsettling state of labor and labor strikes in post-war America.  On the one hand, it’s fabulous that Milton’s Areopagitica and Mill’s On Liberty were part of the deep knowledge of the man who shaped modern free speech law.  On the other hand, it’s hard to tell whether he really understood the implications of dissent on the ground.

As my law school is now in the process of hiring a new dean, I think about Holmes's elitism in relation to the transformative trauma unfolding in legal education today.  Law schools are entranced with experiential education and are dumping jurisprudence in an effort to get students more time in practice training.  Ian Holloway and Steven Friedland recently located legal education in tension between a “grand university” model and a “Hessian craft guild" model.  Holmes was all grand university, and that is not ideal.  But modern free speech would not be what it is today if we were depending on the Hessian craft guild to build it.  It’s really important to have room for both.

Second, Holmes was a little slow on the uptake, even on free speech doctrine.  There was in fact correspondence between Hand and Holmes, though it pre-dated 1919.  And Healy reports how Holmes just missed the point.  Had he gotten the point, he might have started dissenting a bit earlier, and maybe even saved some demonstrators and harmless Bolsheviks from long prison terms.

A good example of Holmes’s fumbling start is the “clear and present danger” doctrine, which was born before the summer of 1919, but only later acquired its more rights-protective meaning.  “Clear and present” was indicative of Hand’s influence, suggesting as it did what today we might call a behavioral economic approach to legal reasoning.  But Holmes rather blew it, because his use of the test was highly subjective.  He gave the test no meaning, so allowed it to be perverted by the fever of the Red Scare.  Later evolution of the test would reveal a dynamic relationship between variables such as the “imminence” and “gravity” of the danger.  That more sophisticated analysis prophylactically protects speech that might be subversive, but poses no real threat, and also allows free speech doctrine to realize its critical anti-majoritarian function.  Hand understood that in 1917.  It took Holmes quite a while to work it out.

Third, Holmes was not a friend you could count on.  Amid the Red Scare, Holmes’s dear friends Laski and Felix Frankfurter, on the Harvard Law faculty, suffered virulent persecution for their politics and identities.  The “Red Summer” was the very summer of 1919.  Both men were sympathetic with labor, and both were labeled Bolsheviks.  Frankfurter, who was Jewish and Austrian, was further denigrated by post-war anti-Semitic and anti-German sentiments.  Critics of Laski, a British national, demanded his expulsion from teaching at Harvard Law.  Imagine!—persecution on a law faculty based on the politically correct zeitgeist.  How last century.

To be fair, Holmes and Harvard Law Dean Roscoe Pound did take steps to defend Laski and Frankfurter.  But their efforts, especially Holmes’s, were lackluster.  Despite the loving affection that Holmes professed for like-a-son Laski in private correspondence, Holmes resisted early entreaties to help.  Holmes was afraid of offending Laski and Frankfurter’s persecutors on the Harvard Law faculty, whom Holmes regarded as friends.  Holmes preferred to distance himself from the conflict and retreat to the sanctified solitude of his private library.  The great dissenter, a Civil War veteran wounded in action, whose famous diction dominated doctrinal opponents, shrank from moral defense of his friends, lest the comforts of his social and economic status be placed in jeopardy.   

Huh.

An honorable biographer, Healy is straightforward and matter of fact when it comes to Holmes the man.  Holmes was a voracious reader, brilliant thinker, and surely was one of the greatest jurists, perhaps the greatest jurist, in American history.  Civil rights as we know it today, and much of human rights as it is known in the world today, owes a debt to Holmes.

Holmes also cheated on his wife.

“If anyone, then, knows the good they ought to do and doesn’t do it, it is sin for them.”  James 4:17.