Judicial Activism (2 of 3)

If you are going to pursue truth, you have to be prepared to change your mind!


Our Activist Judiciary = Hot Lunch For Orphans (Part 2 of 3)

Some background on what happens in courts:

Usually, in legal cases, (actions at law - not “law suits”) the big argument isn't over who did what to whom; the (or at least a major) issue is "do the facts of this case more closely resemble case A - which had one outcome; or case B, which had another -- what law, what precedent applies to this case?"

Each side is, in essence, saying: "Case A /Case B is the ruling precedent for this case because the facts are essentially the same so that Case A / Case B is the precedent can be applied. And the cases cited by the other side don't apply because the facts are different enough so that that case and the case can be distinguished."

Every now and again, however, either there is no existing precedent or the world has changed enough so that the existing precedent no longer leads to a fair result.

Example 1.

In England, during the growth of the industrial revolution, there was a growing need for currency.

Agrarian societies don't need much currency; people get by trading a pig for a bushel of wheat at the old village pump.

With industrialization, commerce became more complex, and it wasn't so easy to barter a case of mill-shaft lynch pins for a gross of microscope focusing rings.

The amount of currency in circulation was completely inadequate to serve the needs of commerce and to take the place of barter, and governments are usually pretty bad at recognizing and responding to change; especially in those days.

So merchants started creating their own "currency:" promissory notes, drafts, checks, and acceptances, aka "negotiable instruments."

There was little law or precedent for negotiable instruments, of course, and the legal effect of various events in the chain of possession of a negotiable instrument was uncertain.

In a series of cases in the late 1700s, an English court led by judge by name of Lord Mansfield pretty much singlehandedly created the law of negotiable instruments. (They were working with various treatises, such as on the "lex mercantile" -the law of merchants - and using merchants as advisors as to what would make sense, but the modern law of negotiable instruments pretty much rests on the law created by Lord Mansfield and his fellow judges.)

Judicial activism at it finest. And no one has ever complained about what he did or excoriated him as "an activist judge."

Example 2: As the automobile industry in the US was getting started, a basic rule of contracts was that you only had rights against a party if you were "in privity of contract” with that party, essentially meaning you only had rights against the party you had directly dealt with.

Mr McPherson bought himself a nice new Buick auto from a dealer: who in turn had bought the car from Buick. Buick, in turn had purchased the wheels from another company.

It had a defective wheel, crashed, and he was injured.

He tried to sue Buick for compensation for the injuries received because of the defective product.

Buick raised the then perfectly valid defense of "no privity of contract."

Despite the existing state of the law (itself created by judges) requiring “privity, the trial court and the appellate court held for plaintiff. Buick appealed to the highest court in NY, still asserting the defense of lack of privity.

An example of activist” judges making law, by hanging law already made by judges, where the legislature wouldn't or couldn't.

As an activist judge, Cardozo achieved justice AND enhanced the auto industry.