I am deeply honored to have been asked by the Fund for Modern Courts to give the third Hon. Hugh R. Jones Memorial Lecture. I did not have the privilege of serving on the 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 90 years of age is a New York City artist of note. Lucy and Jean were classmates at Vassar and 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’ approach to appellate decision-making as illustrated in his many opinions, such as the far-reaching precedent in Codling v. Paglia1 – adopting the theory of strict products liability as a rule in New York law – and in his 1979 Cardozo Lecture before the Bar Association of the City of New York “Cogitations on Appellate Decision Making.”2 As Howard Levine pointed out last year,3 Judge Jones in his “Cogitations,” stresses four attributes of the ideal common law judge. First, utter neutrality. Second, institutional loyalty. Third, an 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

I think we all recognize 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 90th birthday: “Young man, the secret of my success is that at an early age, I discovered I was not God.”
Is there anything that this old lawyer and former Judge, might profitably add to what has been said so well by Judges Wesley and Levine 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, where a well reasoned argument can be made for either side of the case. In the first of fourteen classes, I read to the students from a speech which Karl Llewellyn used to give to his first year law students.

In this brief excerpt – which Karl Llewellyn certainly didn’t mean to be taken literally – he stated:

The hardest job of the first year is to lop off your common sense, 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.7

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. 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’s something you do but you don’t quite know how.

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.” * * *

and he continued:
“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].”8

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., Rosco Pound, Karl 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.9 Whether we use realism or pragmatic instrumentalism,10 I believe the two terms generally describe the mode of decision-making employed by most judges today. No judges that I know would classify themselves as literalists, positivists, rights theorists, neo-Kantians or, for that matter, conservatives or liberals. As has been observed, judges who approach decisions as avowed devotees of a particular legal theorist -- Ronald Dworkin or H.L.A. Hart, for example -- may well find themselves deciding cases to conform to their chosen legal theories rather than under accepted principles of analysis and decision-making.

Has one of the four questions which I ask my students to consider in deciding on a legal rule been more influential than the others in the law’s development as – to quote Chief Judge Kaye – it has “proceed[ed] and grow[n] incrementally, [and] interstitially in a restrained and principled fashion, to fit a changing society?”11 In my view, if there is one such factor, it is what I call fundamental fairness.

Everyone will agree with the simple proposition that a judge’s decision should be fair. The notion is imbedded inour Western culture.12 Even very young children have the idea of fairness. On the wall behind my desk is a plaque bearing these words “Be Fair, Grandpa?” and the date, December 2,1990. My granddaughter, Kolbe – then five years old – offered this intuitive guess when I asked her what she thought a judge would do if she and her younger sister, Annie, asked a judge to settle some dispute between them.

Kolbe’s instinctive notion that judges should be fair, of course, doesn’t tell us anything. Fairness is a relative term and almost always a matter of opinion. Absolute fairness judged objectively may exist as a theoretical, philosophical concept but not in practice. A fair judicial decision is one which is right, just and sound. Fairness, when applied to a judge, connotes wisdom, evenhandedness, perceptiveness and maturity of judgment. But these observations don’t add much, if anything, to Kolbe’s basic idea that a judge should be fair.

What else can we say about fairness? We can agree that it has many dimensions. Equality and evenness, certainly. Reasonableness, of course. It reflects a careful balancing of the competing interests. Two innate attributes of fairness, however, have been particularly important to me as a lawyer and a judge and, I believe, have guided the course of Anglo-American common law in its development from a time well before Magna Carta to the present.

The first is the moral or ethical component of fairness. Here, I reject – as did Howard Levine – Judge Posner’s thesis that the concepts of “moral philosophy, dealing with such ideas as theories of justice, ethical standards of conduct and political morality, do not furnish a judge any basis for legitimate decision-making.”13 These concepts do indeed furnish a basis for decision-making.

We need not delve into the abstruse differences between “law as it is” and “law as it should be”14 or plunge into the debate between Lon L. Fuller and H.L.A. Hart on whether there is some moral or ethical component at the root of the law.15 Nor do we have to accept Lon Fuller’s theories of “natural law” or the “law’s inner morality”16 to agree that sometimes a just and fair decision is reached because the opposite result would offend accepted principles of morality. In other words, it would be “just plain wrong.”17 Riggs v. Palmer18 is an example. Should the Court of Appeals have permitted the grandson named in the will of the grandfather to inherit even though he murdered the grandfather to obtain the inheritance? Almost all reasonable persons would today, I believe, answer “no,” even though every statutory requirement pertaining to the grandfather’s will had been clearly and literally satisfied. Responding to the dissenter’s argument that the Court was “bound by the rigid rules of law, which have been established by the legislature,”19 the majority held that the common law maxim that “no man should profit from his own wrong” was “sufficient to regulate the case without need for a specific enactment in the statute.”20
The morality component of fairness has been a driving force in the evolution of criminal justice from its roots in medieval law when “the actor’s intent was irrelevant since the law punished the act itself”21 and when, for example, accidental and intentional killings were treated alike and punished with the same severity.22 With its gradual recognition that the purpose of the criminal justice system is to punish blameworthiness or “choosing freely to do wrong,”23 the common law has added the element of intent (mens rea) and has recognized defenses based on the actor’s mental state – e.g., justification, insanity, and intoxication. And today, the law, at least by statute, has finally begun to cast off the strictures of the ancient categorical maxim that neither ignorance nor mistake of law can ever be an excuse for a violation.24

A strong undercurrent of morality is also evident in the evolution of Anglo-American law in its attitude toward cruel, unusual and excessive punishments. From the time when the constitutional prohibition was primarily intended to prohibit outright barbarity or sadistic and purely degrading cruelty,25 the scope of the prohibition has expanded as public opinion has became evermore “enlightened by a humane justice.”26 The prohibition has been extended beyond barbaric punishments to include those that are patently excessive or grossly disproportional.27 The Supreme Court has recognized that underlying the cruel, inhuman and excessive punishment prohibition “is nothing less than the dignity of man”28 and that it “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”29 Thus, it has held that the death sentence is an impermissibly excessive punishment for the rape of an adult woman30 or for a defendant who – although aiding and abetting the robbery during which a murder occurred – did not kill anyone and neither attempted nor intended to do so.31 More recently, the Court in Atkins v. Virginia32 – recognizing that the standards of decency and justice were continuing to evolve and that the execution of mentally retarded persons did not further the societal purposes served by the death penalty – held that such executions are unconstitutional.33 In so doing, the Court overruled Penry v. Lynaugh34 in which, only thirteen years before, it had held that such executions did not amount to cruel, unusual or excessive punishment.

Contrasting views of what society regards as morally acceptable are sometimes evident in the Justices’ opinions as in the debate between Justices Kennedy and Scalia in Lawrence v. Texas35 over whether the Supreme Court should overrule its earlier decision in Bowers v. Hardwick.36 Bowers had upheld a Texas statute making homosexual sodomy a crime. In overruling Bowers, the Court in Lawrence necessarily rejected Chief Justice Burger’s view as stated in Bowers that “[c]ondemnation of [sodomy] is firmly rooted in Judeo-Christian moral and ethical standards,” and that permitting it, in Chief Justice Burger’s words, “would be to cast aside millennia of moral teaching.”37

The second dominant and recurring motif in the law’s development – also a component of fairness – has been, in my view, what Chief Judge Kaye has called the law’s “human dimension”38 and Justice William Brennan referred to as that “internal dialogue of reason and passion * * * [which] is in fact central to [the law’s] vitality.”39 It was these human characteristics of fairness – common sense, ethics and ordinary sense of justice – that Karl Llewellyn facetiously told his first year law students they must put in “temporary anesthesia” so that they could be transformed from human beings into coldly, analytical manipulators of the law. It is this human dimension in the law that has compelled common law judges to look for solutions and to ask not “whether,” but “how.” It is this dimension that enables judges to perceive and understand the need and inspires them to find a way to fill it.

Take the case of a purchaser of beans who has been damaged because he bought the beans in reliance on the false weight certificate of the bean weigher. As a matter of common sense and fairness shouldn’t he recover for his damage against the bean weigher although he had no privity of contract with him because the bean weigher had been retained by the seller? In Glanzer v. Shepard,40 Judge Cardozo – looking to the earlier third party beneficiary cases of Lawrence v. Fox41 and Seaver v. Ransom42 for an analogy – found a way for the purchaser to recover. In Thomas v. Winchester,43 the Court, departing from the old common law rule in Winterbottom v. Wright,44 held that a commercial packager of a poison falsely labeled as harmless medicine, who sold it to a druggist who, in turn, sold it to the plaintiff who ingested it should be liable for her acute distress. The Court found a way around the lack of privity between the consumer and the packager by adopting the rule that a party who puts falsely labeled poison into the market and thus “put[s] human life in imminent danger”45 should respond in damages to the ultimate consumer. Fair? Of course. Common sense? Very much so.

Thomas v. Winchester, in establishing the “imminent danger to human life”doctrine was at the head of the platoon of cases in assaulting and ultimately breaching the protective wall of privity in the tort field – for example, MacPherson v. Buick Motor Co.,46 Goldberg v. Kollsman47 and finally, Judge Jones’ landmark holding in Codling v. Paglia48 in which the Court demolished what was left of the privity barrier in tort cases by adopting the doctrine of strict products liability.

Responding to the dictates of common sense, fairness, and the human dimension often requires a common law court to be pragmatic and flexible as in the 1929 case of Hynes v. NY Central Railroad49 where the Court held that the railroad should be responsible for the death of a boy who was electrocuted by a falling electric wire while on a springboard which projected over the railroad right-of-way. Judge Cardozo, again writing for the Court, stated that “[I]n one sense, and that a highly technical and artificial one, the diver at the end of the springboard is an intruder on the adjoining lands. In another sense, and one that realists will accept more readily, he is still on public waters in the exercise of public rights.”50

On occasion – when no remedy can be found in precedent, logic or analogy – finding a way to answer the demands of justice and fairness requires imagination, creativeness and even inventiveness. Hymowitz v. Eli Lilly & Co.,51 decided in 1989, is an example. The Legislature had passed a law52 removing the time bar to enable women to sue the manufacturers for the grievous injuries to their reproductive systems they had suffered because their mothers, while pregnant with them, had0 ingested the drug DES several years earlier. There was a problem. The plaintiffs were grown women. Because of the long lapse of time, no plaintiff was able to establish an essential element of liability – the identity of the particular DES manufacturer which had produced the specific drug that her mother had taken during pregnancy.

The Court solved the problem by adopting the then unprecedented national market share theory of recovery. This bases a manufacturer’s liability on proof that it was supplying the dangerous drug to the market when the drug was consumed by the pregnant mother. Responsibility is allocated among the manufacturers in proportion to their respective shares of the national market at that time. That the need to find a way around the problem compelled the decision is evident from the Court’s declaration that “the ever evolving dictates of justice and fairness which are the heart of our common law system, require formation of a remedy for injuries caused by DES.”54
Also, to permit a group of African-American males to recover damages from the State for the egregious invasion of their civil rights by Oneonta City Police, the Court, in Brown v. State of New York,55 looked to the State Constitution and adopted a then unknown cause of action for a constitutional tort which could be brought in the Court of Claims. The holding met with protestations that the Court was acting in a legislative capacity.

Indeed, in a very real sense, the Courts both in Brown and in Hymowitz were legislating (or, some might even say, committing the dread sin of judicial activism); but no more so than in Glanzer v. Shephard, Thomas v. Winchester and in some of the other cases just discussed; or than the Court did in Woods v. Lancet 56 where – abandoning the archaic rule of Drobner v. Peters 57 that there could be no remedy for prenatal injuries suffered by a viable fetus – it permitted recovery for injuries sustained in utero and observed that “[w]e act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice”58; or the Court did in Battalla v. State of New York59 where it jettisoned the settled rule in Mitchell v. Rochester Railroad Company60 prohibiting the recovery of emotional damages caused by fright and upheld such damages for a young boy who was terrified and became hysterical on a negligently operated chair-lift.

Indeed, as a recent article reminds us, “(c)ries of ‘improper judicial activism’ greeted many rulings that now are accepted by most liberals and conservatives alike as grounding the rule of law in respect for individual rights.”61 These rulings included such landmark decisions as Brown v. Board of Education62 and Gideon v. Wainwright.63 Whether we call the Court’s invention of a new rule or the replacement of an old one with a new one legislating or judicial activism, it seems to me, is of no moment. For, as Judge Cardozo put it “I take judge-made law as one of the existing realities of life64” and, he continued, the “choice of methods, the appraisal of values, must in the end be guided by like considerations for the [judge] as for the [legislator]. Each indeed is legislating within the limits of his competence.” Linda Greenhouse, The New York Times’ authority on the Supreme Court, is equally direct. In her essay entitled, Judgment Call; Sure Justices Legislate. They Have To,65 she writes that “beyond ritual political incantations [in Senate Judiciary Committee hearings] about judges [never committing the sins of “legislating from the bench” or “making law instead of interpreting the law”] lies a separate, tacitly understood and widely accepted reality,” which might be stated thus: “We are all judges – We are law makers.” (Emphasis added).

Where then does this leave us? Do I tell my students that to be changed back into human beings means that when they analyze their assigned problems as Court of Appeals Judges, they should act as misty-eyed do-gooders running about in search of opportunities to enforce such imprecise concepts as fairness, justice and the human dimension, without regard to precedent? Of course not. For, in the words of Judge Cardozo, even “within the gaps, restrictions not easy to define, but felt, however impalpable they may be, by every judge and lawyer, hedge and circumscribe his action.”66 These are the restrictions of Judge Jones’ “objective rigorous analysis”67 – practical reason, precedent and pragmatism. Does the proposed rule make sense? Will it work? How does it fit with what we have? These constraints will, when appropriate, serve to slow, halt or even change the direction of a rule’s progression. Thus, the holding in Glanzer68 where the buyer’s reliance on the bean weigher’s certificate was the very “end and aim of the transaction”69 could not, as Judge Cardozo explained in Ultramares v. Touche,70 be logically or practically extended to a case where that was not so. Thus, Judge Cardozo held that accountants who negligently prepared an audit for their client should not be liable to members of an “indeterminate class of persons who, presently or in the future, might deal with the [client] in reliance on the audit.”71

I have often been asked this question: “How can you go from being a lawyer to being a judge, and back to being a lawyer again, seemingly, without the slightest difficulty and without changing your attitude toward the courts, the legal profession or the justice system?” My answer: if you have boundless respect and admiration for our judicial system – this complex and immense apparatus with its thousands of courts, judges, clerks, and attendants which functions so amazingly well under the leadership of our Chief Judge – and if you love having a role in it, whether as a lawyer or a judge, it’s easy!

But something else fascinates and holds us – an indefinable essence that permeates the vast system, gives it its life, binds it together, yet transcends it and all of us who are part of it. This essence is the Anglo-American common law, the creation of man’s reason which continues to evolve as it has over the centuries to meet the felt needs of the time and makes it possible for people to live together peaceably and for societies to exist. Judges and legal philosophers will continue to write about it and to speculate about what lies beneath it, causes its progression and produces its coherence and stability. I certainly don’t know the answer, but I suggest that in a just society it is some basic notion of fairness, justice and good.

The Court of Appeals building on Eagle Street and the magnificent courtroom inside – both so cherished by Judge Jones and all who have been privileged to serve or represent clients there – exhibit two of the law’s contrasting aspects. The purity of lines of the classical Greek architecture bespeaks the Athenians’ pursuit of excellence and wisdom as the highest attainments – the idea of law and justice as the product of reason.72 The qualities of fortitude and independence are evident in the permanence of the stone structure and in its stance alone and apart from the other branches of government on the other side of Academy Park. Yet, there is a subtlety in the Ionic capitols crowning the columns which suggests the inventiveness and resourcefulness of Ulysses. The Courtroom – designed by the renowned H.H. Richardson and universally admired for its beauty, charm and warmth – makes a different impression. It speaks not of the intellectual aspect of the law but of the human.

Will this evolving common law – as created and applied by the distinguished Court presently occupying the superbly renovated Court House on Eagle Street and by the Courts to come – be competent to deal effectively and fairly with the perplexing matters of the twenty-first century? We think immediately of some matters that the Court may be asked to address, such as:

! the proper balance between the post-September 11th, 2001 need for increased security and the individual’s rights to privacy and to due process of law;

! whether the State may define marriage and pass laws so as to exclude same-sex couples from the full benefits and entitlements of marriage;

! the problems that may arise from new advances in molecular biology and medical science in such subjects as the cloning of human embryos;

! the effects of the constant march toward globalization in commerce and industry and the increased demands on state courts to deal with international commercial contracts under treaties such as the CISG73;

! the legal status of frozen pre-embryos conceived in vitro and the resolution of disputes in the absence of a valid agreement over custody and control when the parents divorce74; and

! the circumstances under which a plaintiff who has not been physically injured and is not within the zone of danger should be permitted to recover for emotional injuries negligently caused by another.75

But, “[t]he range of common law [questions to come before the Court]” Judge Kaye has reminded us, “is bounded only by the human imagination.”76 And, if the placement of Opportunity and Spirit on the Martian landscape, the discovery of the planet Sedna and the pictures of Hubble’s deepest view of the universe looking back in time to shortly after the big bang are any indication of things to come in the remaining years of this twenty-first century, one might wonder whether there are any bounds at all to mankind’s imagination and creativeness.

The common law will continue to evolve and change and adapt, as it has for centuries, to meet the challenges of the times. Of that I’m sure. And I’m confident also that the residents of the noble structure on Eagle Street in this century and the next will continue to create and apply it in a manner which would meet with Judge Jones’ approval.