January 06, 2021 Feature

Can’t Swim? The Jump Will Kill You

Without a general kind of return to a more thoughtful and carefully grounded quest for information, we are all very much at risk, liberals and conservatives alike.

Robert E. Shapiro

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Do easy cases make bad law? The more familiar refrain concerns hard cases, which are usually seen as the real troublemakers. It is a tribute to, but also a discouraging feature of, the law’s complexity how easy it is to get things wrong. Certainly, it’s true that difficult cases pose an extra challenge and can quickly bring on untoward results and set bad precedent. Just like lawyers who say they always win, judges who claim never to have been daunted by a tough problem are rare birds and are probably not telling you the whole story in any event. Hard cases haunt us all.

No one gets out of hard cases unscathed. The harder the case, the more fraught the process and the less certain the outcome, the greater the trap for even the most hardworking decision-maker to mistake or misunderstand the issue. Even the winner sometimes gets uneven or wobbly results. There can be lasting damage not just to the reputation of the lawyer and jurist alike but to the law itself. The digests are full of derelict decisions that parties are called upon to distinguish or that the courts have had to discount later or overrule. In some cases, the problem of a poorly decided hard case is obvious almost immediately. In others, the menace just lies quietly around for decades before causing serious mischief at a later date. Every experienced litigator can recite his or her own litany of such hard, and maybe wrongly decided, cases that have bedeviled good results, disrupting or blocking progress with bad precedent and leading to errant decision-making in the “instant” case as well.

At the highest level, the Supreme Court has been responsible for more than one such misadventure. Think, for example, of the decisions of the “Old Men” of our highest court during the New Deal. The matters that came before them may not seem like such hard cases now. But at the time, they were viewed as such, and it’s partly the sometimes dubious benefit of hindsight that has made their errors (if that is what they were) seem so obvious now. The harm done to FDR’s reform program was palpable.

Hard cases usually at least have the virtue of alerting both the courts and the parties that the matter requires heavy lifting. Everyone can tell it’s a difficult issue requiring skill, understanding, and a broad perspective if it’s to be decided correctly. Too-easy cases, on the other hand, lack this inducement to good judicial decision-making, and that can have its consequences too.

The Supreme Court in the infamous Corn Products case didn’t seem to have much trouble closing a standard dodge of the tax laws that had seriously disrupted the collection of internal revenue for some time. Few questioned the propriety of the ruling, at least at first. Only over time did it become obvious that by doing as it did—with relative ease (if not nonchalance)—the Court provided the basis for one of the largest tax loopholes ever to have frustrated the tax collectors. One of the risks in the “easy” case scenario is that, with the mind of the judge or court barely taxed, all the implications of what it is doing may not be thought through. In particular, the court may fail to consider the indignities a flaccid decision might suffer at the hands of lawyers determined to maximize the interests of their clients.

Illustration by Dave Klug.

Illustration by Dave Klug.

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