Meeting the needs: fairness, morality, creativity and common sense Hugh R. Jones Memorial Lecture: Albany Law School - March 29, 2004.

• Author: Hancock, Jr., Stewart F.

I am deeply honored to have been asked by the Fund for Modern Courts to give the third Honorable Hugh R. Jones Memorial Lecture. I did not have the privilege of serving on the New York State Court of Appeals with Hugh Jones. He retired at the end of 1984 and I joined the Court in January of 1986. Nevertheless, Hugh Jones has been a role model, not only as a Judge but as a selfless, public-spirited citizen--one who devoted the better part of his life to serving his country, his state, his community, his church, and his fellow lawyers. His distinguished career included service as a naval officer in the Pacific during World War II, Presidency of the New York State Bar Association, participation as an appointee of Governor Rockefeller on the Commission to Review the Attica Riots, membership on the Board of Trustees of Hamilton College and leadership of the Episcopal Diocese of Central New York as its Chancellor. While Judge Jones will long be remembered for these contributions, it is for his work on the Court of Appeals that his memory will be enshrined.

Judge Jones is recognized today as one of the great jurists to have served on the Court of Appeals. His beautifully crafted opinions stand out in the New York Reports as models of scholarship, clarity of thought, and lucid graceful wordsmanship. Their influence in charting the course of the law in New York is unquestioned.

While I did not serve with Judge Jones on the Court, I did have the pleasure of knowing him and his delightful wife, Jean. We saw each other frequently at Bar Association and other functions. We shared a close mutual friend, Miss Lucy Eliott, who today at ninety years of age is a New York City artist of note. Lucy, Jean and Hugh Jones maintained a life-long friendship. Lucy used to tell me that she knew many judges, but only kept pictures of two on her wall--Judges Jones and Hancock. "Not bad to be paired with Hugh Jones," I thought. Lucy will be delighted to learn that I am giving this lecture in honor of her dear friend Hugh.

Judges Wesley and Levine, in their excellent presentations, have described and analyzed Judge Jones's approach to appellate decision-making as illustrated in his many opinions--such as the far-reaching precedent in Codling v. Paglia (1) which adopted the theory of strict products liability as a rule in New York law--and in his 1979 Cardozo Lecture before the Association of the Bar of the City of New York entitled Cogitations on Appellate Decision Making. (2) As Judge Howard Levine observed last year, Judge Jones, in his Cogitations, stresses four attributes of the ideal common law judge. (3) First, utter neutrality. Second, institutional loyalty. Third, insistence on an objective and rigorous analysis which reduces the risk of result oriented decision-making. And finally, a commitment to the common law process of gradual incremental development of the law through case-by-case evolution and refinement. Most judges and lawyers, I believe, would agree with these "Jonesian" characteristics of the ideal judge which, as acknowledged by both Howard Levine and Judge Jones, are certainly not novel. Indeed, in a recent discussion among well known academics about Justice Sandra Day O'Connor's role as the fifth and deciding vote in many Supreme Court decisions, Justice O'Connor was described in terms that would fit the "Jonesian" ideal. One professor commented:

I think Justice O'Connor for many of us in the legal academy represents the ideal of a judge--somebody who doesn't have a predetermined outcome but who in fact does strive to craft a result that is just in the particular case, and is understandable both in terms of legal thought as well as understandable to the larger polity. (4) And he alluded to another essential attribute of our model judge. Again, referring to Justice O'Connor, he said: "She has a wonderful expression that says a wise old man and a wise old woman decide pretty much the same way, they just both need wisdom," and he added "I think the word 'wisdom' is associated with Justice O'Connor." (5)

We all recognize I'm sure that the wisdom of judges, like beauty, often lies "in the eye of the beholder" (6) and that the degree of it attributed to a particular judge may vary appreciably if the beholder happens to be a lawyer with a matter before the judge. But, certainly our "Jonesian" judge should possess as much wisdom as possible. And an essential trait of the wise judge is captured in Justice Holmes' memorable answer to a reporter's question on his ninetieth birthday: "Young man, the secret of my success is that at an early age I discovered I was not God." (7)

Is there anything that this old lawyer and former judge might profitably add to what has been said so well by Judges Wesley (8) and Levine (9) and by Judge Jones in his Cogitations, keeping in mind, as Justice O'Connor has pointedly indicated, that judicial wisdom does not necessarily increase with age? Certainly nothing of substance that is new, but perhaps a few footnotes.

When I left the Court ten years ago, I went back to teaching a seminar for third year law students at Syracuse Law School called "Case Analysis and Appellate Advocacy." We analyze and conduct legal arguments on problems the students know nothing about--problems usually made up from a Court of Appeals decision for which a well-reasoned argument may be made on either side of the case. In the first of fourteen classes, I read to the students from a speech that Karl Llewellyn used to give to his first year law students.

In this brief excerpt, which Karl Llewellyn certainly did not mean to be taken literally, he stated:

The hardest job of the first year is to lop off your common sense of justice, to knock your ethics and your sense of justice into temporary anesthesia. You are to acquire the ability to think precisely, to analyze coldly--and to manipulate the machinery of the law. It is not easy thus to turn human beings into lawyers. (10) The Llewellyn passage sets the stage for what I try to do in the remaining thirteen class sessions and also for some of what I shall say here today. I tell my students:

If any one of you, from your experience in the first year of law school, has been transformed into the coldly analytical legal automaton which Professor Llewellyn envisioned, I intend to change you back--to teach you how to rely on your common sense and to restore your ethics and your sense of justice and fairness. I intend to make you human again. I ask the students, in giving their answers and solutions to the problems, to assume that they are individual judges sitting on the Court of Appeals, a Court of limited jurisdiction whose primary function is establishing rules of law. I don't try to tell them how I arrived at decisions as a judge or how I think other judges either do or should decide cases. For me, and perhaps for most other judges, the process of arriving at a decision in a difficult case remains a mystery. It is something that you do, but you do not know quite how you do it.

Certainly, the classic exposition of the decision-making process is Benjamin Cardozo's The Nature of the Judicial Process. I read my students these oft-quoted lines: "My analysis of the judicial process," he stated, "comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law." (11) And continuing with the quote, I read:

If you ask how he [or she] is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed, is the point of contact between the legislator's work and [the judge's]. (12) I say to my students what I used to say to my law clerks when they were analyzing a problem, particularly one that might require the Court of Appeals to devise a new rule or change an existing one. Ask yourselves these questions: Will the rule you're proposing work? Does it make sense? How will it fit into the existing progression of the law? And, will it operate fairly?

These simple questions contain a mix of utilitarianism, pragmatism, moral theory, and rights theory. These are the considerations which have governed the development of the common law from its sometimes brutal origins in ancient Germanic tribal law, through its emergence from the rigid constraints of nineteenth century formalism, to the more adaptable and more enlightened modern approach to decision-making.

Most of us would call this modern approach legal realism--the method inspired and formulated by the eminent jurists and scholars of the early twentieth century, such as: John Chipman Gray, Oliver Wendell Holmes, Jr., Roscoe Pound, Karl N. Llewellyn, Lon L. Fuller, H.L.A. Hart, John Dewey, Jerome Frank and, of course, Benjamin Cardozo. Professor Robert Summers of Cornell Law School categorizes some of the great judges and thinkers who influenced the development of modern legal theory as pragmatic instrumentalists. (13) Whether we use realism or "pragmatic instrumentalism," (14) I believe the two terms generally describe the mode of decision-making employed by most judges today. No judges that I know would classify...