By John Caher

ALBANY - ALBANY - A father of legal realism, Karl Llewellyn liked to joke with his first-year law students that it was his job to strip them of common sense and their notions of justice and fairness so he could "turn human beings into lawyers."

Stewart F. Hancock Jr. figures it is his role to return law graduates to the human race.

Yesterday, Mr. Hancock, now a practicing lawyer in central New York and visiting professor at Syracuse University College of Law, delivered the third annual Hugh R. Jones Memorial Lecture at Albany Law School.

His speech echoed the sentiments expressed through many Court of Appeals decisions, rejecting the notion that morality, ethics, fair play, common sense - the qualities that make judges human beings - have no role in adjudication.

"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," Mr. Hancock said. "It is this dimension that enables judges to perceive and understand the need and inspires them to find a way to fill it."

He pointed to two Court of Appeals decisions: Hymnowitz v. Eli Lilly & Co., 73 NY2d 487 (1989); and Brown v. State of New York, 89 NY2d 172 (1996).

In Hymnowitz, the Court adopted a unique national market share theory of recovery for victims of DES - diethylstilbestrol - a synthetic estrogen product that damaged the children of women who had ingested the drug while pregnant.

Brown recognized for the first time a constitutional tort that enabled black men to recover from the state for the systematic violation of their civil rights. Both, Mr. Hancock said, are examples of "the dread sin of judicial activism."

And both, he said, were right on the law and simply right.

"Responding to the dictates of common sense, fairness and the human dimension often requires a common law court to be pragmatic and flexible," Mr. Hancock said. "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."

Since its inception three years ago, the Jones Lecture has focused on judicial methodology and principled decision-making on an appellate court.

Hugh Jones, who served on the Court of Appeals from 1972 through 1984, is often credited not only with influencing the high court through his legal reasoning, but also through his approach to jurisprudence. He was a strong advocate of collegial adjudication, whereby judges with different views and life experiences come to a meeting of minds that advances the common law process of incremental evolution of the law.

Previous Jones lecturers were Judge Richard C. Wesley, now of the U.S. Court of Appeals for the Second Circuit, and Judge Howard A. Levine, now a practicing lawyer in Albany.

Mr. Hancock openly parted with the judicial philosophy of Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit in Chicago, a noted legal theorist. Judge Posner has argued that moral philosophy has no legitimate role in adjudication.

"No judges that I know would classify themselves as literalists, positivists, rights theorists, neo-Kantians or for that matter conservatives or liberals," Mr. Hancock said. "As has been observed, judges who approach decisions as avowed devotees of a particular legal theorist . . . may well find themselves deciding cases to conform to their chosen legal theories rather than accepted principles of analysis and decision-making."

Mr. Hancock said judges should be driven by one overriding consideration, "fundamental fairness." That consideration, he said, combines a moral or ethical component with humanity.

"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 that they must put in 'temporary amnesia' so that they could be transformed from human beings into coldly, analytical manipulators of the law," Mr. Hancock said. The late Mr. Llewellyn was a University of Chicago law professor.

Mr. Hancock said he now tells his third-year students at Syracuse the same thing he told his clerks at the Court of Appeals: "Ask yourself 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?"

The lecture is sponsored by the Fund for Modern Courts and Albany Law School. Mr. Hancock spoke to to about 350 judges, faculty, law students and attorneys from the area gathered in the Alexander Moot Courtroom. He was introduced by Chief Judge Judith S. Kaye.

The Legislative Gazette, April 5, 2004
Judge argues for 'human dimension of the law'

By Jessica Bloustein
Gazette Staff Writer

Aristotle once said, "the law is reason free from passion." During a lecture at Albany Law School last week, Stewart Hancock Jr., however, presented an argument that makes Aristotle's claim seem imprecise.

Hancock argued that fairness, ethics and sense of justice, three attributes scholars of the court system agree are the hallmark of an ideal judge's approach to law, in fact comprise a "human dimension of the law" inherent to the decision-making that reflects a "fair and efficient" justice system.

Aristotle's concept of law, free from passion, precludes this human dimension. In the absence of this element, according to Hancock, judges become "cold, analytical legal automatons," functioning only to make decisions based on precedents set forth in previous rulings.

But a constantly evolving society is a reality here in New York, and demands a simultaneous evolution of common law that cannot be accomplished without its human dimension. Courts are facing issues to which prior or antiquated common law precedents cannot relate to guide a fair and just ruling. Hancock cited Sept. 11, same sex marriage, stem cell research and several other never-before experienced, controversial, emotionally laden issues as examples. Any judgment on such cases requires new interpretation which, according to Hancock, is "bounded only by human imagination."

"Responding to the dictates of common sense, fairness and the human dimension often requires a common law court to be pragmatic and flexible," he said. "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."

Hancock defined the adaptation of common law to modernize one's approach to decision making as legal realism. And part of that realism is the undeniable presence of a human dimension to law.

"Common law will continue to evolve, change and adapt to meet the challenge of changing times," he said.
Hancock pointed out that judges must weigh the consequences of their decision before finalizing it, asking fundamental questions: "Will the rule one is proposing work? Will it make sense? How will it fit into the existing progression of law? Will it operate fairly?"

Answering such questions requires fairness, ethics and a sense of justice, all human characteristics tied to Aristotle's concept of passion.

"The human dimension has compelled common law judges to look for solutions. They ask not whether, but how," Hancock said.

The Fund for Modern Courts and Albany Law School invited Hancock to give the third annual Judge Hugh R. Jones Memorial Lecture before members of the New York State Court System.

The Fund for Modern Courts is a private, non-profit organization seeking to improve the administration of justice in New York by ensuring efficiency, fairness and accessibility of courts for all of its citizens. The organization sponsors programs to foster these attributes.

The lecture honors Judge Hugh Jones, a champion of efforts to ensure fairness and efficiency in New York's courts. Jones held many prominent positions in and around the court system, including an associate judgeship on the Court of Appeals, presidency of the New York State Bar Association, chairman of the Commission on Judicial Nomination and director of the Committee for Modern Courts.

A retired associate judge of the New York State Court of Appeals and a former State Supreme Court Trial Justice, Hancock serves as counsel to Hancock and Estabrook, LLP. He also is a visiting professor and Jurist in Residence at Syracuse University School of Law. Chief Justice Judith S. Kaye introduced Hancock before his lecture as a scholar of the common law process.