The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [73]
Sometimes lack of clarity is necessary. Language is inherently limited. It’s not easy to capture certain kinds of obligations in a clear linguistic formula. In tort law, for example, sometimes the best we can urge is to “be careful,” or more precisely, to “not act negligently toward someone to whom you owe a duty to be careful.” In deciding whether someone is liable for an accident, what constitutes negligence depends on the situation. In commercial law, no matter how finely negotiated a contract is, the various negotiated terms cannot substitute for the legal duty to “act in good faith.” What amounts to good faith depends on the situation. Another example comes from property law, where the “duty of habitability,” implied in landlord-tenant leases, requires the property to be “habitable.” Habitability depends on the situation. In business law, officers of a corporation owe a “fiduciary duty” to the corporation. What satisfies that duty depends on the situation. A police search is legal only if “reasonable”—which depends on the situation. And so on.
When we have to decide what the law actually requires, we have to consider the situation in which the law is being applied. This mindfulness is required whether we are trying to figure out our responsibilities before the fact (lawyers would say ex ante), or trying to determine legal responsibility after the fact (ex post) as a judge or jury member.
We must also consider the situation after guilt or liability is established, when we are determining punishment. The law of punishment and remedies demands attention to particularities of each case. In criminal law, federal court judges are required to base punishments on the “real conduct” underlying the conviction. The Supreme Court has struck down congressional efforts to impose mandatory, uniform penalties for federal crimes that would make it difficult for judges to take into account the circumstances of each conviction.16 Even when it comes to areas of law such as contracts and tort, the amounts of liability often depend on particular judgments that are hard to pin down ahead of time. Contract damages turn in part on what the parties’ rightful expectations were if the contracts had been honored. Tort judgments depend not only on the total amount of the injuries but on who caused them and whether the victim (that is, the plaintiff) should bear some blame.
All this is to say that law is much less precise than non-lawyers might think. (One of the joys, and challenges, of teaching first-year law students is getting them comfortable with the ambiguity of law.) Rarely are both the rule and punishment clear. By its very nature, the law requires that there be some dialogue between the situation and the legal decision maker. The rule and punishment only become precise once the contours of the situation in which they are applied are understood.
Here we return to the choice about bad choices.
Usually, the law gets involved only after someone has screwed up, or after someone believes someone else has screwed up. You sue someone in tort if you’ve been injured by, say, a hit baseball or a falling ax. You sue your former employer to be reinstated in your old job even though you signed a contract to resign. You are accused of murder when you forget your child in the car and, God forbid, he dies of exposure. You accuse a fellow student of rape, on the basis of an incident in which you repeatedly said “no” but did not physically resist, while also engaging in behavior that the accused claims he misunderstood. You suffer charred lungs while in a self-help guru’s sweat lodge, others lose their lives, and the guru is charged with negligent homicide.
In each of