Judicial ramblings

• Author: Jonathan Steinberg
• Pages: 6-6

PLASTICITY OF LEGAL LANGUAGE

Susan Nevelow Mart’s “Results May Vary,” March,

page 48, suggests prac tical lessons concerning pitfalls

in legal research , which lawyers and law students ignore

at their peril. A major lesson is that word s by themselves

do not solve problems. They stand for concepts, and one

must consider di erent ways to identif y the concept that

is crucial to one’s research goa l.

I give as examples the va ried words and phrases that

lawyers and judges use to identif y concepts involved

in a varied set of tor t problems. That set of problems

includes injuries occurr ing beyond the time and place

that ordinari ly would have been predicted, where the

manner of the occurr ence of injury was unusual, and

where the harm to the plaint i or her interests i s indi-

rect or of a kind that is di  cu lt to calculate.

I have identifi ed locutions that one fi nds in case law.

Illustratively:

• The defendant had “no duty” to the plai nti .

• The defendant’s conduct or product was not the

“proximate cause” of the plai nti ’s inju ry.

• The defendant was not the “legal c ause” of the

plainti ’s injury.

• The defendant’s conduct was “not negligent to

the plaint i .”

• The plainti ’s i njury was “too remote” from the

defendant’s conduct to justify rec overy.

• The injury was not the “natur al and probable

consequence” of the defendant’s conduct .

• The injury was not “w ithin the risk” of the defen-

dant’s conduct .

This smorgasbord of languag e is, to borrow Mart’s

language, a “te stament to the variability of human

problem-solving.” It illustrates the di culty, just for

a torts teacher, of communic ating the plasticity of

language to students des perate for the single-solving

word. And it captures t he challenge to lawyers who

must dig in many sources for the bes t precedent.

Marshall S. Shapo

Evanston, Illinoi s

REFORMING BAIL

Contrary to the i mpression conveyed by “Battling

Bail,” March, page 18, it is not only bondsmen who

oppose bail “reform.” Reform, which includes preventive

detention, also raises c oncerns for those devoted to

the protection of

individual rights

and civil liber ties.

The ABA Journ al’s

description of New

Jersey’s new system

does not mention

that until 2017,

preventive detention

was prohibited by

the New Jersey

Constitution. That constit ution was recently amended

to allow preventive detention and empower the stat e

legislature to deter mine the procedures, terms and

conditions applicable to pretrial r elease.

The new availability of preventive detent ion has

led to persistent e ort s by prosecutors to broaden

the grounds on which release may be den ied. In

just one example, as the ar ticle notes, the state

attorney general’s knee-jerk reac tion to a homicide

allegedly commit ted by someone released pretrial

was to direc t prosecutors to seek detention of those

charged with fi rearms possession. While a cha nge

in the pretrial relea se system was necessar y to avoid

the unjust and counterproductive ja iling of people

unable to raise even smal l amounts of bail, it should

have been accomplished without the add ition of pre-

ventive detention, which is the dark side of “reform”

in New Jersey and elsewhere.

David B. Harris

Scotch Plains, New Jersey

I wasn’t aware that the purpose of ba il was to provide

a business opportunit y for bondsmen. Naive me, I

thought its purpose was t o ensure low-danger-to-the-

public people showed up for court without the tax pay-

ers having to feed and house them in t he meantime.

Tyrone Jackson

Boston

JUDICIAL RAMBLINGS

William St. Julien A rabin of “The Incoherence of

Serjeant Arabin ,” Ma rch, page 26, was only a circuit

judge, so I doubt he heard any capital ca ses—though

cutting o childr en’s hands for st ealing a loaf of bread

was probably still relatively c ommon in the 1830s. But

the Old Bailey had at that time jus t become one of the

only London criminal c ourts; it certainly wasn’t what

it is today—where only the more important case s are

tried. But it only assumed th at function in 1856. Hence

some of Arabin’s more minor ramblings!

Jonathan Steinberg

New York City

CORRECTIONS

“Pet Threat,” April, page 16, misidentifi ed C helsea

Rider as an attor ney. She does hold a JD.

“Imbalance of Power,” April, page 38, should have

identifi ed Ilya Somin as being at the Antonin Sc alia

Law School.

The Jour nal regr ets the errors.

CLARIFICATION

“Results May Vary,” March, page 48, should have

noted that the data cited i s from a 2015 study by

author Susan Nevelow Mart. A lgorithms and their

results are continua lly changing, and each of the legal

database providers in t hat study has changed their

algorithms since the dat a was collected. See Caset ext’s

comment on our article: https://blog.casetext.com/

what-a-d i erenc e-a-few-years-ma kes-the-rapid-

change- of-legal-s earch-t echnolog y-ce91a60a b73b.

Letters

6 || ABA JOURNAL MAY 2018