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Hard Cases Make Bad Law – Or Why Do Judges Wear Black?

by Theresa Fritz Camoriano (7-30-01)

Who isn’t disappointed when a hard-working athlete is prevented from playing basketball due to NCAA policies?  Who doesn’t boo Snidely Whiplash and cheer for the fair maiden who can’t pay the rent?  Who doesn’t root for the underdog – the person who was not offered a job due to the employer’s personal prejudices, the sympathetic person asking for help?  Why don’t the courts always decide in favor of the “good guy”?  Is it because the judges are fans of the opposing team, as suggested by our local press, or because they are cruel and uncaring?  Maybe that’s why judges always wear black!

We live in a society with rules, and these rules provide us a wealth of opportunities and permit us to work, raise our families, and go about our business in relative safety and comfort.  We take this safety and comfort for granted and assume that it will always be there.  The job of judges and courts is to uphold these rules in order to maintain that security and those opportunities.  Upholding the rules often means that the judges must find in favor of the evil landlord over the sympathetic, struggling tenant or in favor of the unsympathetic NCAA over the hard-working athlete.  We feel pity for the evicted tenant or the struggling athlete, but have we ever considered what would happen if the judges routinely allowed their sympathies to interfere with upholding the accepted standards?

If our basic legal principles (property rights, freedom of contract, freedom of association) are not upheld, and if judges are free to find for the party they favor, regardless of the law, then we lose the safety and security that we take for granted.  Then theft is okay, as long we like the thief more than the original property owner.  Then we can force people to run their lives and businesses our way, even though we are not their family or friends and are not their majority shareholders.  But will this create a better world?  We don’t have to guess.  We need only look to see what already is widely found around the world in so-called “third world countries”. 

When the penniless fair maiden wins against Snidely Whiplash, who is going to invest in future housing construction?    When the NCAA or another rival association loses control of its own policies, who will provide future opportunities for young people to compete? 

The benefits and opportunities of our society that we take for granted as our birthright are not so common when you look around the world.  If we allow the Oprah-ization of our society to seep into our judicial system (and it has already made great inroads), undermining the basic rights that have created all the opportunities we take for granted, then we will all lose those benefits.

If you feel sorry for the fair maiden, please offer her a job or take her into your home until she can get on her feet.  If you feel sorry for the athlete, and think the NCAA is unfair, then join another athletic association with rules you prefer, or help train the athlete so he can become a professional.  But let’s not use the courts to deconstruct and tear down the legal framework that supports our society.  We need to continue to uphold our basic legal principles, for the benefit of everyone, especially including fair maidens and struggling athletes.