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Hard cases make bad law?

Posted by Smokey Stover on March 26, 2007

In Reply to: Hard cases make bad law? posted by ESC 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.

A.P. Herbert, "(September 24, 1890 - November 11, 1971) was an English humourist, novelist, playwright and law reform activist. He served as a Member of Parliament for Oxford University for fifteen years, five of which he spent on active service with the Royal Navy," (bio info from Wikipedia) was an admirable man, who served in two World Wars without asking for an officer's commission, and who should be the patron saint of everyone, or at least everyone in the U.K., who has been able to get a divorce without proving adultery.

So I pay attention when he says: "There is an old and somewhat foolish saying that 'Hard cases make bad law,' and therefore the law must be left as it is." I found this somewhat challenging, so I used Google to find out what others think. I didn't get to the end of the retrieved citations, but there seemed a widespread belief (Holmes aside) that a "hard case" was one in which the law dictated a result entirely at odds with either humanity or common sense, that is, a case of which the results are hard to bear. One opinion was that an example of a hard case was "meritless litigation," a broad category which would certainly included nuisance suits, various types of tort claims verging on "slip and fall" fraud, and possibly the use of the courts by a rich company to crush those with shorter pockets who engage in practices the rich company dislikes. An example would be Monsanto promising to sue any dairy company that labeled their milk "free of bovine growth hormonem" or the RIAA suing a 14-year-old girl for downloading one or two copyrighted songs.

But the definition of "hard cases" (as per the adage) that I have held all these years is entirely different from the ones presented by Google and those apparently intended by A.P. Herbert. I did not discover the name of the individual who coined the phrase, nor, obviously, what he meant by it. I'm anxious to hear the opinion of Lewis, who may be willing to give us his advice.

"meritless litigation