Advance Sheet. Can't Swim? The Jump Will Kill You

• Author: Robert E . Shapiro
• Pages: 56-59

Advance Sheet

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 56

ROBERT E. SHAPIRO

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP,

Chicago.

Do easy cases make bad law? The more fa-

miliar refrain concerns hard cases, which

are usually seen as the real troublemak-

ers. It is a tribute to, but also a discourag-

ing 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 untow-

ard 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 un-

scathed. 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 dam-

age 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 bedev-

iled 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 pro-

gram 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 disrupt-

ed 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 non-

chalance)—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

CAN’T SWIM? THE

JUMP WILL KILL YOU