Choosing Law and Giving Justice

Author:Louise Weinberg

This little essay is dedicated to my good friend, Symeon Symeonides, though he will agree with only so much of it. I offer it along with best wishes for his future achievements as law dean at Willamette. These remarks are brief and unfootnoted only because the multitude of participants in this symposium/festschrift in his honor have been asked of necessity to try to limit their contributions in that way, but I have tried to say something I care about.

Holder of the Bates Chair and Professor of Law, University of Texas School of Law.

The doctors have a prime directive: "At least do no harm." Medical science cannot always restore health, but at least physicians can try not to make things worse. Judges probably could use a prime directive too: "At least do no injustice." Courts cannot right every wrong, but at least judges can try not to make things worse.

Judges, however, come up against a paradox when they try to avoid an unjust outcome in a case. This paradox is especially poignant in cases presenting multistate problems. Judges doing a commendable job of choosing law to govern a multistate problem-commendable by our "modern" lights-may find themselves in a position in which it is very difficult not to do an injustice. In most states of this Union, and in many countries, judges today try to choose law based on the connection between the sovereign whose law is sought to be applied and the problem before the court. This connection-set of contacts-nexus-has become all important to a choice of law. The appeal of this modern theory is an appeal to reasonableness. To most of us, the more connections an event may have with, say, Barataria, the more reasonable it will seem to let Barataria law govern the consequences of that event. And the fewer connections between Barataria and the case, the more unreasonable becomes its governance.

We are right to think such governance unreasonable. When law is irrelevant it falls into the common lawyers' category of "arbitrary and irrational ". In the United States irrelevant law is not only arbitrary and irrational, it is unconstitutional. Law irrelevant to the parties' case cannot be "due process." Thus, if an irrelevant law is the only law that could avoid injustice, legal theory and constitutional principle combine to tell us that judges must do the "reasonable" thing even if it means an "unjust" result. There you have the paradox.

Justice versus principle. This paradox is like the teasing puzzles of childhood that have...

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