Hard cases make bad law?

Posted by ESC on March 26, 2007

In Reply to: Hard cases make bad law? posted by Morning on March 26, 2007

: Hard cases make bad law?

I found a couple of quotes by Oliver Wendell Holmes Jr. (1841-1935), who served on the U.S. Supreme Court, that include the term "hard cases" but it seems to me that he is just using a common phrase. One quote is:

"Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment." Northern Securities Co. v. United States 193 U.S. 197, 400-401 . From "A Concise Encyclopedia of Legal Quotations" by Elizabeth Frost-Knappman and David S. Shrager (Barnes & Noble, 1998). Page 36.

That same reference has a quote by A.P. Herbert (1890-1971) that says, in part: "There is an old and somewhat foolish saying that 'Hard cases make bad law,' and therefore the law must be left as it is. It would be equally true to say, 'Bad law makes hard cases,' and therefore the law much be amended. The real truth lies somewhere between." Uncommon Law, 1936.