Spandrel or Frankenstein's monster? The vices and virtues of retrofitting in American law.

• Author: Dorf, Michael C.

INTRODUCTION

Ancient mythology, literary fiction, and modern science fiction films all recount a similar cautionary tale: human ingenuity gives rise to a powerful invention, but through human fallibility and, in some tellings, venality, the invention becomes a monster and turns on its creators. Perhaps the most famous example is Mary Shelley's Frankenstein, in which Dr. Frankenstein's attempt to fashion a living man from the dead remains of others succeeds, only then to go horribly awry. (1) Such stories are timeless because they warn of the dangers of indelible features of human nature: hubris and shortsightedness. Recent large-scale catastrophes such as the 2010 Deepwater Horizon Gulf oil spill and the 2011 tsunami-induced radiation leakage at the Fukushima nuclear power facility are only the latest reminders of the limits of human ingenuity and the continuing relevance of the Frankenstein story.

But if the unintended consequences of human ingenuity can sometimes prove disastrous, at other times, they may turn out to be felicitous. We are all familiar with accidental inventions like penicillin, (2) Post-it Notes, (3) and the microwave oven. (4) Spandrels are a more whimsical example. A spandrel is the space between a curved arch and a rectangular boundary; (5) although an artifact of architecture and geometry, since ancient times, artists and architects have used spandrels to enhance the beauty of buildings. (6)

We see a similar process in nature: evolution, or in the case of human culture, our own artifice, retrofits organs and capacities that were originally selected for one purpose to serve some very different purpose. Feathers evolved as insulation but proved useful for flight. (7) Evolutionary biologists debate the causal origins of sophisticated human language, (8) but it certainly did not evolve to enable the writing of sonnets or the delivery of lectures on law. The late evolutionary biologist Stephen Jay Gould popularized the term "exaptation" to refer to this phenomenon, expressly analogizing it to spandrels in architecture. (9)

So much for literature, science, and art. Let me turn now to something about which I am more qualified to express an opinion: law. The law contains numerous examples of retrofitting. Legal institutions, doctrines, and texts that were originally thought to serve one purpose can come to serve quite different purposes.

Consider the jury. We think that the role of the jury is to represent the common sense and values of the community in finding the facts and applying the law. (10) In doing so, jurors must avoid bias. (11) Thus, lawyers and judges question prospective jurors to weed out those with experiences or prior relationships with parties or witnesses that might interfere with their ability to make a decision solely based on the law and the evidence presented in court. (12)

Yet the medieval English jury--from which our modern jury evolved (13)--was composed of people from the locale in which the disputed events took place precisely because local jurors would have knowledge of the facts and parties based on their prior relationships. (14) In other words, medieval jurors served both of the functions now served by jurors and witnesses. What we would now call a juror's disqualifying bias was the very characteristic that rendered medieval jurors qualified to sit in judgment.

Does that mean that the modern jury is normatively unjustified? Not necessarily. A post hoc rationalization can nonetheless be a good justification. Still, the knowledge that some legal institution or practice that we take for granted was originally understood to serve purposes wholly unrelated to its contemporary justification should at least give us pause. Reflecting on the accidental quality of our institutions and practices can be a first step toward examining their efficacy relative to other possible arrangements.

In this Lecture, I shall provide additional examples of retrofitting of the sort just described: legal doctrines, texts, and practices that initially served one purpose coming to serve some quite different purpose. My methodology in this Lecture is chiefly descriptive. I aim to show that legal retrofitting is relatively common. I also hope to shed some new light on old debates by recasting them as contests over the legitimacy of legal retrofitting.

Whether we view any particular example of retrofitting as creating a Frankenstein's monster or a beautiful spandrel will depend on the views we hold about the sources of law's authority and disputed matters of interpretive methodology. Because views about such matters will sometimes vary with the type of law at issue, I give separate consideration in this Lecture to examples drawn from the common law, statutes, and the Constitution.

1. COMMON LAW RETROFITTING

   I begin with the common law. To illustrate and evaluate spandrels and Frankenstein's monsters in the common law, I shall take my cue from three of our greatest judges: Oliver Wendell Holmes, Jr., Benjamin Cardozo, and Learned Hand.

   Both Holmes and Cardozo warned of the Frankensteinish tendencies of the common law. Holmes famously wrote in The Path of the Law:

   It is revolting to have no better reason for a rule than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. (15) Changed circumstances without a corresponding change in the law, Holmes says, can thus render monstrous what was once a useful invention. (16)

   Moreover, a once-justified legal principle can become a monster even without changed circumstances, simply through the internal dynamics of the law. Cardozo described this dynamic in The Nature of the Judicial Process. (17) The common law, he said, is ideally a synthesis of multiple methodologies. (18) To fill gaps and answer novel questions, the common law method melds "philosophy" (by which Cardozo meant abstract reasoning), historical inquiry into the origins of legal rules and principles, attention to custom, and express consideration of public policy. (19) In the hands of the right judge, the vices of each of these different modes of analysis counteract one another. (20) Yet sometimes judges write opinions that emphasize one or another mode of reasoning to the exclusion of others. (21) That can be especially dangerous when the judge overemphasizes the "philosophical" mode. Within that domain, Cardozo observed "[t]he tendency of a principle to expand itself to the limit of its logic." (22) If there it comes to rest, all is well, but "philosophical" common law reasoning can run amuck. Cardozo noted that when not held in check by other factors, the human mind, including, perhaps especially, the human judicial mind, will exhibit a "constant striving ... for a larger and more inclusive unity, in which differences will be reconciled, and abnormalities will vanish." (23)

   Of course, the law cannot really reconcile all differences and make abnormalities vanish. Cardozo was describing the way in which the common law sometimes lumps together disparate phenomena. For example, we treat a one-time bilateral arms-length transaction for the sale of personal property and a long-term multilateral agreement among repeat players as both governed by the "law of contract." (24) Too much lumping untempered by the splitting impulse of the turn to history, custom, and policy, Cardozo warned, can lead to a Frankenstein's monster. (25)

   Fortunately, the tendency of the common law towards overlumping is very often tempered by life's messiness. Holmes made that point in his frequently quoted observation that "[t]he life of the law has not been logic: it has been experience." (26) Holmes himself was not consistent in his thinking on this point. The not-logic-but-experience line emphasizes particularities and differences. Yet in other writings, Holmes championed legal doctrines that would flatten differences and abnormalities. For example, in a charming and no doubt apocryphal story in The Path of the Law, Holmes mockingly described a Vermont judge who searched the law books in vain for the law applicable to churns in order to resolve a dispute over a broken churn. (27) In an insightful discussion of this story, Professor Schauer astutely observed that insofar as Holmes was making a prediction that the law would increasingly use legal rather than prelegal categories, he may well have been wrong: "[W]hen we observe the 'path' of the law" over the last century, Schauer writes, "what we see is not the increasing utility of such trans-doctrinal categories, but rather their decreasing utility, and the increasing use of statutes, regulations, and common law principles that hook onto relatively specific parts of the prelegal world." (28)

   If the last century of legal developments has seen a movement away from overlumping, that is not to say that the law never overlumps anymore. What Cardozo described as the "philosophical" instinct remains strong among judges, in no small part because it still dominates legal education. (29) It is easy for law professors such as myself to pose relatively abstract hypothetical questions to a room full of law students in order to elicit the best rule; it is considerably more difficult to provide insight into the enormous variety of prelegal life worlds that may call for distinctive legal regimes. Thus, young lawyers leave law school trained in the slicing and dicing of Holmes's legal categories rather than the prelegal categories to which Schauer points. (30)

   To the extent that the tendency of the common law to lump disparate phenomena into ill-fitting legal categories goes unchecked by the countervailing pressure of other modes of common law reasoning, the common law can grow monstrous. In some circumstances, the resulting law is monstrous from an ethical perspective. For example, in the slave states of the antebellum...