Two recent decisions return me to the forklist case I mentioned in my July 2 entry and, since the decision is still pending, I am still brooding. (I brood after the decisions, too. Well, if I lose or get dissents.)
1. DeCambra and lack of nonfeasance duties:
In this decision, the SJC affirms the lack of a tort duty to protect against third-parties except if in a fiduciary relationship.
That’s exactly the type of new duty at issue in the forklift case — a duty on manufacturers to warn about third-party activities after sale. In the forklift case, the third-parties are people re-configuring warehouse shelves (changing the external environment) after the forklift is sold.
With the proposed new duty to warn, the product isn’t defective, and the warnings as to its use at the time of sale are reasonable. Those aren’t the issues before the Court in the certified question. So the new duty by its very definition isn’t about anything the manufacturer did, but third-parties — and whether a manufacturer has to warn about new third-party actions after sale. Such a duty would seem inconsistent to me with the general rule repeated in DeCambra.
2. The Kennedy v. Louisiana flap
More broadly, the whole kerfluffle about Justice Kennedy’s mistake in his recent opinion prohibiting the death penalty in child rape cases raises the question about what it’s fair to ask our appellate courts to be doing.
Here’s a summary of that boo-boo:
Basically, in noting that concepts about cruel and unusual punishment have evolved, Justice Kennedy said that there was no federal death penalty for child rape. He was wrong. The federal statute does impose the death penalty. So now Louisiana is attempting to re-open the case, and everyone gets embarrassed because none of the parties or amici pointed this out to the Court before it issued its decision, which noted this now shown to be untrue fact.
What’s the relevance to my forklist case? I think the Kennedy example is illustrative of problems that can arise when appellate courts are asked to or do rule based on facts outside of an appellate record. When applying facts outside the record for whatever position a Court may be adopting, those facts can be wrong, selective, out of context etc. It’s just not fair to ask for decision-making based on extra-record "facts."
When a decision is based on a fact in the record, then the parties have had a chance to brief it, and the other side to get his two cents in. This is why we have an adversarial system – to test facts. When courts have to go outside that tight record for their decision-making, for whatever reason, they are doing something that they aren’t particularly built for, and it can become a mine field.
This is one of the problems with citing the law of other countries. Here’s a link to Scalia and Breyer’s debate on that topic:
As that conversation notes, one issue Scalia had with citing comparative law was lack of context, because the Justices don’t have a full picture of all the related laws and legal system. In other words, boo-boos can be made, because the Court isn’t an expert in anybody else’s law. They know U.S. federal law, and can understand a state’s law, both the issue before them and its general context, easily enough — that’s what they are built to do. But figuring out how one statute in Indian law really works, and how it fits within a broader framework, isn’t really within their area of expertise.
The Scalia-Breyer conversation also points out another pitfall when courts reference outside, temporally sensitive factors. In a death penalty dissent, Justice Breyer famously cited Zimbabwe law to support his position. He has since received much flack for this, and suggests in this debate that his citation of might have been a tactical error, noting that Zimbabwe is not exactly known for its stellar human rights record.
Now, obviously, judges live in the real word and are informed by life (well, except maybe for Justice Souter; I have a vision of him living in a tree like a Keebler elf). So, for example, when Justice Kennedy notes that gays and lesbians have historically been disadvantaged, this seems like such a basic no-brainer that it’s not a controversial or weak link in his analysis, whether you agree with how that fact influences his ultimate decision. But beyond these utterly indisputable, take judicial notice, points, making decisions based on a court’s current understanding of non-litigated matters can just be fraught.
Which is perhaps why, at least since Lochner, courts have been particularly hesitant to base their decisions on their economic views – economic "facts" look like the end of the spectrum of those outside factors based on which courts should be particularly reluctant to reach legal conclusions. It’s up to the legislature to balance those considerations. If the economic world has changed, that seems like a debatable enough point that a court may not want to rely on it as a basis for its decision (unless it’s a situation again, where there can be no debate – e.g. every other state has done it).
Another reason why courts might take pause before making a decision that expands a duty or changes the law based on what they deem to be the current economic climate or other transient factors is the fact that it’s a lot harder for a court to retract a common law expansion of duty than for a legislature to keep tabs on these issues through statutes. If a legislature passes a duty to warn statute (e.g. a product liability law), and decides to amend it, it can always keep amending based on its perception of the world and the current economic situation. It’s much more difficult for a court, whose decisions aren’t supposed to be buffetted by changeable winds.
In the end, the court’s primary role is to apply immutable, rational principles to the precise questions presented to it, based on the tested, specific record before it. If the U.S. Supreme Court can get into trouble in ruling on constitutional questions squarely within its constitutional duties by examining outside factors, despite all their firepower and zillion amici, then in developing the common law, state supreme courts might be reluctant to rely in their decisionmaking on outside factors asking them to be economists or legislators.
We give the Courts enough to do. We shouldn’t make it any harder.