The Law/Justice Dichotomy
Teaching Students to Make
Persuasive Arguments
through Embracing the
Justice in the Law
Lisa T. McElroy
Dean of Legal Skills and
Visiting Assistant Professor of Law
508-998-9600 x 140 * lmcelroy@snesl.edu
www.lisamcelroy.net
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Mural on the Exterior of Thomas M.
Cooley Law School, Lansing, Michigan
(Banner hanging on the outside of
Cooley Law School in Lansing, Michigan)
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Equal Justice Under Law
Law

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“America is a nation of laws
. . . The law is not always an
easy friend, because the law
does not play favorites. But
for those who seek justice in
a society of responsible
citizens, the law will always
be an ally.”
-New York Mayor Edward I. Koch,
Address at Gracie Mansion (Sept. 7,
1981), available at Transcripts of
Speeches by Koch and Regan on
the Westway Project Here, N.Y.
Times, Sept. 8, 1981, at B7.
Justice

“Are laws to be
enforced simply
because they were
made?”
- Henry David Thoreau, A Plea for
Captain John Brown 30 (1859)
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Equal Justice
Under Law
Exchange between Judge Learned Hand and
Oliver Wendell Holmes:
Hand: “Do justice, sir.”
Holmes: “That is not my job. My job is to apply the law.”
-Judge Robert Bork, The Tempting of America: The Political Seduction of the
Law (New York: Touchstone, 1990), at 6.
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Making Persuasive Arguments
From a Legal Standpoint

Will often be advanced by a
criminal defendant (“You have to
apply the Rules of Criminal
Procedure, or the Constitution, or
the statutory language, to my case,
even if you don’t like the result.”)
 Defendants
in domestic violence cases
(Davis v. Washington and Hammond v.
Indiana, companion cases now pending
before the United States Supreme
Court.)
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Making Persuasive Arguments
From a Legal Standpoint
 Will
often be asserted by the
defendant in a civil case (“We
followed the letter of the law.”)
Environmental
cases: (EPA
guidelines)
Special education cases: (“We
provided some educational benefit.”)
Medical malpractice: “I complied with
standards of the profession, so I can’t
be sued even though the baby is
brain-damaged.”
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Making Persuasive Arguments
From a Legal Standpoint

Will often come up when the arguing
party wants to maintain the status quo
(“This is what the law is and what it
should continue to be.”)
 Notice
is important in the law, so we
shouldn’t just change it willy-nilly, even if the
facts are compelling.
 Statutory construction: (“The legislature
has had an opportunity to act and has not;
therefore, it has acquiesced to the courts’
interpretation.”)
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Making Persuasive Arguments
From a Legal Standpoint

Will also be important in a case of first
impression (“What does the law say,
exactly?”)
 Will
ask the court to disregard the legislative
history and go with the plain meaning of a
statute (very Scalia-esque).
 What
does it mean to be “closely related” for
purposes of NIED? See Hislop v. Salt River
Project Agric. Improv. and Power Dist., 5 P.3d
267 (Ariz. App. 2000).
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Making Persuasive Arguments
From a Legal Standpoint
Will often argue
that the law and
its consistent
application are
inherently just.
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Making Persuasive Arguments
From a Justice Perspective
 Will
often be made by the
prosecution in a criminal
case (“If this person is
definitely guilty, why do we
have to apply or even care
about the rules?”)
Police
not following procedure.
Jury nullification.
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Making Persuasive Arguments
From a Justice Perspective
“Last night in Iraq, United States military forces
killed the terrorist al-Zarqawi. . . . special
operation forces, acting on tips and intelligence
from Iraqis, confirmed Zarqawi's location, and
delivered justice to the most wanted terrorist in
Iraq.
Zarqawi was the operational commander of the
terrorist movement in Iraq. He led a campaign of
car bombings, assassinations and suicide attacks
that has taken the lives of many American forces
and thousands of innocent Iraqis. . . Now Zarqawi
has met his end, and this violent man will never
murder again.”
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Source: Bush speech, June 8, 2006, as released by the Associated Press.
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Making Persuasive Arguments
From a Justice Perspective
The problem with
making a justicebased argument is that
different people have
a different idea of what
constitutes justice.
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Making Persuasive Arguments
From a Justice Perspective

Will often be made by a plaintiff
in a civil case (“It’s only fair that I
should recover in light of the
harm this person has done to
me.”)
Personal
injury or med mal action
(especially with respect to punitive
damages).
Breach of contract claims
(especially in a David and Goliath
situation).
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Making Persuasive Arguments
From a Justice Perspective

Will often ask court to depart from
stare decisis in order that the court
might do “what’s right.”
(“Although
this issue has been
decided, the court erred in its earlier
decision. A more just result would be
. . .”).
May ask court to look to the
Restatement, a majority rule, public
policy concerns that have changed,
etc.
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Making Persuasive Arguments
From a Justice Perspective

Will also often come up in a case of first
impression (“This court should use this
case to establish fair and just precedent.”)
 Child
abuse cases: “You should construe the
mandatory reporting statute broadly because its
purpose is to protect children . . .”
 May
choose to look to legislative history in a
statutory claim.
 Will
employ rule parameters in a common law
claim and argue that extension of the rule is/is
not just.
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Making Persuasive Arguments
From a Justice Perspective
Will often argue that
the law is inherently
unjust or would be
unjustly applied
in these
circumstances.
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Sports: A great, accessible example*
The rarest medal in the Olympics wasn't created from gold, but a bolt.
The story begins on a cold, winter afternoon in Innsbruck at the 1964 Olympic two-man bobsled
competition. A British team driven by Tony Nash had just completed its first run, which had put them
in second place. Then they made a most disheartening discovery. They had broken a bolt on the
rear axle of their sled, which would put them out of the competition.
At the bottom of the hill, the great Italian bobsled driver Eugenio Monti, who was in first place, heard
of their plight. Without hesitation, Monti removed the bolt from the rear axle of his own sled and sent
it to the top of the hill. The British team affixed it to their sled and then completed their run and won
the gold medal. Monti's Italian team took the bronze.
When asked about his act of sportsmanship, Eugenio Monti deflected
any praise, saying, "Tony Nash did not win because I gave
him a bolt. Tony Nash won because he was the best driver."
The story of Monti's selfless act spread. And because of it
he was given the first De Coubertin Medal for sportsmanship.
The award, named after the founder of the modern Olympics,
is one of the noblest honours that can be bestowed upon an
Olympic athlete.
In other words, the most precious hardware any Olympian can own
*
* http://www.olympic.org/uk/passion/humanity/monti_uk.asp
.
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Paul Hamm/International Federation of
Gymnastics (“FIG”) v. Yang Tae-young



Law (Hamm)
Hamm’s position was based on
an International Federation of
Gymnastics (“FIG”) rule that
says, in a multi-apparatus
competition, any scoring protests
must occur before the gymnasts
move on to the next apparatus.
Despite the fact that the
erroneous start value was clearly
posted when Yang did his bars
routine, Yang and his coaches did
not protest his score until the end
of the competition. Therefore,
Yang should not have received
the gold medal because he did
not comply with FIG rules.
Rules have important role/value
in sports.




Justice (Tae-young)
Olympic judges incorrectly
scored Yang’s parallel bars
routine out of a possible 9.9
instead of out of 10.0. A review
of the tape verified that the
judges erred.
Had he been given the correct
start value, Yang would have
won the gold, and Hamm would
have gotten the silver.
Best gymnast should get the
gold.
The win shouldn’t be based on
a technicality, but on sports
ability and performance.
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Questions to ask: Hamm/Yang
1) Is Hamm right? Should the FIG rule be enforced in Yang’s
situation?
- or 2) Is Yang right? Should the FIG rule be set aside so that Yang
can share Hamm’s victory?
3) Should the FIG rule be changed?
- Might the FIG rule might be a good one, in general? Why might
the FIG rule not be a good one?
4) If a rule may be unfair as applied, does the rule still have
value?
- Should exceptions be made as situations arise? Why or why
not?
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Miller v. Amusement Enterprises, Inc.
259 F. Supp. 523 (E.D. La. 1966)
In this civil rights action, a mother
sued on behalf of her children,
who were denied entrance to an
amusement park because they
were African-American. The
federal district court held that the
accommodations provision of the
Civil Rights Act of 1964 did not
expressly include (and had not
been intended to include)
amusement parks.
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Miller v. Amusement Enterprises, Inc.
259 F. Supp. 523 (E.D. La. 1966)
Law
Justice
(amusement park)
(Miller family, civil rights movement)
42 U.S.C.A. § 2000a (1964)
“Equal access:
(a)
All persons shall be entitled to the full and equal
enjoyment of the goods, services, facilities,
privileges, advantages, and accommodations of
any place of public accommodation, as defined in
this section, without discrimination or segregation
on the ground of race, color, religion, or national
origin.
(b)
. . . Each of the following establishments which
serves the public is a place of public
accommodation within the meaning of this
subchapter if its operations affect commerce, or if
discrimination or segregation by it is supported by
State action . . .3) any motion picture house,
theater, concert hall, sports arena, stadium or
other place of exhibition or entertainment.”

Fun Fair isn’t covered under the statutory
definition, so the park doesn’t have to let the
Millers in.



Kennedy’s goal was for all
Americans to have access to
public places.
Discrimination is inherently
unjust.
The amusement park shouldn’t
be treated any differently than a
restaurant, a hotel, etc.
(accommodations that are
specifically covered).
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Miller v. Amusement Enterprises, Inc.
394 F.2d 342 (5th Cir. 1968)
The Fifth Circuit reversed. “We are
not only dealing with the language
of the statute, but we must look as
well to the logic of Congress and
the broad national policy which was
evidenced by its enactment. Our
system does not favor mechanical
jurisprudence; it seeks to find the
purpose and spirit of a statute and
the intention of its makers.” Id. at
353 (emphasis added).
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Miller v. Amusement Enterprises, Inc.,
394 F.2d 342 (5th Cir. 1968)
Is judicial activism –
the effort to use the
courts as arbiters of
social justice –
inherently just?
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Crawford v. Washington
541 U.S. 36 (2004)
Scalia opinion holding that the
Sixth Amendment’s Confrontation
Clause requires actual
confrontation. Therefore, even
reliable out-of-court statements by
witnesses to crimes are
inadmissible if they qualify as
“testimonial.” See also Davis v.
Washington and Hammond v.
Indiana.
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Crawford v. Washington
541 U.S. 36 (2004)


Law (Batterers)
Under the Sixth
Amendment to the United
States Constitution,
criminal defendants have
the right to confront
witnesses against them.
We must apply
constitutional guarantees
to all people, regardless of
the desirability and/or
perceived correctness of
the outcome.
Justice (State)


Many victims of domestic
violence make statements to
police and medical personnel
at the time of the crime, then
refuse to testify against the
batterer at trial (often because
the batterer has threatened to
hurt them again if they do).
If excited utterances and
statements made for
purposes of medical
treatment are no longer
admissible in many domestic
violence situations, many
batterers will go free and will
likely batter again.
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Crawford v. Washington
541 U.S. 36 (2004)
Is judicial restraint –
a philosophy of
commitment to strict
interpretation and
application of the law
– inherently just?
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Elizabeth Corday, M.D. v. County Hospital
NBC’s hit program, ER
(Try Carter, episode first airing October 14, 2004)
Dr. Corday, a skilled surgeon, agrees to
transplant a heart from an HIV-infected
donor to an HIV-infected donee, in
violation of a law that prohibits
donation/transplant of HIV-infected
organs. An amendment to the law
which would allow the transplant has
been passed by the legislature but has
not yet been signed by the governor.
Despite the fact that both the donor and
the donee consent, Corday is fired for
violating the law and exposing the
hospital to liability.
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Elizabeth Corday, M.D. v. County Hospital
NBC’s hit program, ER
(Try Carter, episode first airing October 14, 2004)
Law



All people are bound
by follow the law,
whether they like it or
not.
County Hospital is
concerned with
liability.
What will happen if
doctors violate the law
any time they feel like
it?
Justice


Where’s the harm?
The donee has HIVdisease and has
consented.
What’s more, the
donee can’t get an
organ from anyone
else, as his HIV status
puts him at the bottom
of the priority list.
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Elizabeth Corday, M.D. v. County Hospital
NBC’s hit program, ER
(Try Carter, episode first airing October 14, 2004)
Is an individual’s
decision to act as
she would like the
law to be - not as the
law is - inherently
just?
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State v. Serial Killer
Jilliane Hoffman, Retribution (2004)
A prosecutor knows for a fact that a
criminal defendant is guilty of a terrible
murder. However, the search through
which the dead body is found is illegal,
because it was based on an anonymous
tip, and the tip was not specific enough to
constitute probable cause. The prosecutor
colludes with police to make up a story
which, if true, would make the search legal
and the evidence recovered thereby
admissible.
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State v. Serial Killer
Jilliane Hoffman, Retribution (2004)


Law
(Criminal defendant)
The exclusionary rule
says that evidence
obtained in violation of
the Fourth Amendment
is not admissible
against a criminal
defendant.
The exclusionary rule
applies to everyone,
even known serial
killers.


Justice (State)
The guy’s a serial killer!
What harm is there in
admitting the evidence?
There’s no risk of
convicting the wrong
person.
Constitution aside, he
should pay for his
crimes. If we don’t
punish him, he’ll go
scot free for raping and
killing a bunch of young
women.
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State v. Serial Killer
Jilliane Hoffman, Retribution (2004)
Is a lawyer’s decision
to disregard the law
in the pursuit of
justice inherently
just?
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Other Compelling Examples:
Property
In the middle of a blizzard,
a landlord evicts a single
mother with three small
kids. The tenant has not
paid rent for six months.
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Other Compelling Examples:
Contracts
After Hurricane Katrina, many
homeowners could not collect
insurance proceeds because they
had not purchased separate
coverage for flood damage;
therefore, the insurers argued
that they were not contractually
bound to pay out. They did cover
damage caused by wind.
Source: http://katrinainformation.org/disaster2/latest/insurance_advice/?printerfriendly=yes
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Other Compelling Examples:
Contracts
Statement by insurers:
“Prices will increase nationwide, however, if
lawsuits succeed in retroactively rewriting
insurance contracts to compel property insurance
companies to pay the flood damage claims of
people who did not buy flood insurance coverage
from the National Flood Insurance Program.
Generally speaking, standard homeowners and
business property insurance policies provide
hurricane damage from wind, but do not cover
losses from floods. If insurers are compelled to
pay huge numbers of flood claims for which they
collected no premiums and have no reserves,
insurance prices around the country will have to
rise.”
Source: http://www.disasterinformation.org/disaster2/facts/katrina_faq/
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Other Compelling Examples:
Contracts
Statement for homeowners:
ROBERT MARIONNEAUX JR. (Louisiana State
Senator): I would hope that the insurance
company would step forward, not argue about
whether it was wind or flood damage, make a
reasonable assessment of the damage and pay
the claim in reasonable short order. Is that going to
happen? I doubt it. That's not the way insurance
companies work.
Source: http://www.pbs.org/newshour/bb/economy/july-dec05/insurance_9-27.html (a
NewsHour with Jim Lehrer)
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Other Compelling Examples:
Civil Procedure*
“If the motion is made after the
expiration of the specified time, it shall
not be granted unless the court finds
that the failure to act was the result of
excusable neglect.” Wis. Stat. Ann.
801.15(2)(a) (West 1994).
 If
the attorney is neglectful, then a
client’s entire case can be dismissed for
procedural rather than meritorious
reasons.
* Many thanks to Alison Julien and Jessica Price of Marquette Law School for providing me with
this example.
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Other Compelling Examples:
Torts
Former girlfriend brought tort action against
former boyfriend who had secretly
videotaped their sexual relations and
shown the tape to his friends. However, the
Texas Supreme Court held that the tort of
negligent infliction of emotional distress did
not exist in Texas absent the breach of
some other legal duty, precluding recovery
for the girlfriend. Boyles v. Kerr, 855
S.W.2d 593 (Tex. 1993).
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Still More Useful Examples:
Torts
Police were not liable in tort for
failing to protect stalking victim,
even when she called them and
told them of overt threats of
imminent violence (or when they
failed to prevent other crimes
against individuals). Riss v. City
of New York, 240 N.E.2d 860
(N.Y. 1968).
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Still More Useful Examples:
Constitutional Law
In a case similar to Riss, the United States
Supreme Court ordered a woman’s claim
dismissed where police failed to enforce a
restraining order and her ex-husband
kidnapped and murdered her three children.
Castle Rock v. Gonzales, 125 S. Ct. 2796
(2005). While the Court called the facts of her
case “undeniably tragic,” it held that Ms.
Gonzales had no procedural due process
property right in police enforcement of the
protective order. Id. at 2803.
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Still More Useful Examples:
Family Law
A court orders a mother, Dr. Elizabeth
Morgan, to allow her ex-husband, Dr. Eric
Foretich, to visit with their daughter,
Hilary. The mother learns that the father
has probably sexually abused Hilary and
refuses to let him see her. She hides
Hilary and then serves 25 months for
contempt of court. She is only released
after Congress passes a bill specifically
aimed at her situation.
Source: Elizabeth Morgan Act, D.C. Code Ann. § 11-925 (2001) (overruled as an unconstitutional bill of attainder
at 351 F.3d 1198 (D.C. Cir. 2003)).
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Still More Useful Examples:
Family Law
Evan Scott, a three-year-old in Florida, had
lived with “adoptive” parents for his entire
life. Under the law in effect when he was
born, his biological father could and did sue
for custody months after Evan’s birth. After
a long legal battle, Evan was removed from
his adoptive parents’ home and sent to live
with biological mother (who had intervened
to counter the father’s petition).
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Still More Useful
Examples: Family Law
Justice
Law


Under Florida law, a judge
decided that the biological
parents’ rights trumped Evan’s
and the Scotts’.
The legislature responded by
passing a law requiring
fathers to file notice that they
opposed the adoption within
30 days after the birth of the
child. Fla. St. 63.062 (West
2003).

Best interests of the child

Parents who love him and
have cared for him since
birth

Shouldn’t these decisions
be made by a single judge
and very quickly?

Kids have a right to
stability.
Source:
http://www.adoption.com/includes/frame.php?url=http://www.usatod
ay.com/news/opinion/2005-01-23-custody-our_x.htm
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Still More Useful Examples:
Criminal Law
In an episode of L.A. Law, a baby is killed.
Both parents are tried for her murder.
However, each parent points the finger at the
other and thereby establishes reasonable
doubt. The episode makes abundantly clear
that one parent did kill the baby, but we just
don’t know which one. However, because of
the reasonable doubt standard, both go free.
Justice Swerved (episode first airing March 29,
1990).
 We
might very well see this strategy used in the
Duke lacrosse case.
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Persuasive Arguments May
Choose An Approach – Or May
Argue Both!
Law
Justice
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