Letters: Plasticity of legal language
Susan Nevelow Mart’s “Results May Vary,” March, suggests practical lessons concerning pitfalls in legal research, which lawyers and law students ignore at their peril. A major lesson is that words by themselves do not solve problems. They stand for concepts, and one must consider different ways to identify the concept that is crucial to one’s research goal.
I give as examples the varied words and phrases that lawyers and judges use to identify concepts involved in a varied set of tort problems. That set of problems includes injuries occurring beyond the time and place that ordinarily would have been predicted, where the manner of the occurrence of injury was unusual, and where the harm to the plaintiff or her interests is indirect or of a kind that is difficult to calculate.
I have identified locutions that one finds in case law. Illustratively:
- The defendant had “no duty” to the plaintiff.
- The defendant’s conduct or product was not the “proximate cause” of the plaintiff’s injury.
- The defendant was not the “legal cause” of the plaintiff’s injury.
- The defendant’s conduct was “not negligent to the plaintiff.”
- The plaintiff’s injury was “too remote” from the defendant’s conduct to justify recovery.
- The injury was not the “natural and probable consequence” of the defendant’s conduct.
- The injury was not “within the risk” of the defendant’s conduct.
This smorgasbord of language is, to borrow Mart’s language, a “testament to the variability of human problem-solving.” It illustrates the difficulty, just for a torts teacher, of communicating the plasticity of language to students desperate for the single-solving word. And it captures the challenge to lawyers who must dig in many sources for the best precedent.
Marshall S. Shapo
Evanston, Illinois
REFORMING BAIL
Illustration by Sara Wadford
Contrary to the impression conveyed by “Battling Bail,” March, it is not only bondsmen who oppose bail “reform.” Reform, which includes preventive detention, also raises concerns for those devoted to the protection of individual rights and civil liberties. The ABA Journal’s description of New Jersey’s new system does not mention that until 2017, preventive detention was prohibited by the New Jersey Constitution. That constitution was recently amended to allow preventive detention and empower the state legislature to determine the procedures, terms and conditions applicable to pretrial release.
The new availability of preventive detention has led to persistent efforts by prosecutors to broaden the grounds on which release may be denied. In just one example, as the article notes, the state attorney general’s knee-jerk reaction to a homicide allegedly committed by someone released pretrial was to direct prosecutors to seek detention of those charged with firearms possession. While a change in the pretrial release system was necessary to avoid the unjust and counterproductive jailing of people unable to raise even small amounts of bail, it should have been accomplished without the addition of preventive detention, which is the dark side of “reform” in New Jersey and elsewhere.
David B. Harris
Scotch Plains, New Jersey
I wasn’t aware that the purpose of bail was to provide a business opportunity for bondsmen. Naive me, I thought its purpose was to ensure low-danger-to-the-public people showed up for court without the taxpayers having to feed and house them in the meantime.
Tyrone Jackson
Boston
JUDICIAL RAMBLINGS
William St. Julien Arabin of “The Incoherence of Serjeant Arabin,” March, was only a circuit judge, so I doubt he heard any capital cases—though cutting off children’s hands for stealing a loaf of bread was probably still relatively common in the 1830s. But the Old Bailey had at that time just become one of the only London criminal courts; it certainly wasn’t what it is today—where only the more important cases are tried. But it only assumed that function in 1856. Hence some of Arabin’s more minor ramblings!
Jonathan Steinberg
New York City
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