Judging the law: court is not a security blanket
''Take your problems to church,'' the cards in the subway used to say. ''Millions leave them there.'' Nowadays, whatever spiritual support and guidance people receive from religion, it is plain that most take their temporal problems elsewhere: to court.
The Boston Motion Session is the busiest civil courtroom in the Superior Court. This is where, in Suffolk County cases, a lawyer goes for an order compelling his opponent to disclose information about the case. That is where lawyers go to obtain an attachment on the enemy's bank account, or real estate, or machinery.
More important, from the commonwealth's point of view, it is the initial arena in which are fought the great public legal battles: an injunction against a statute alleged to discriminate; an injunction against the imposition of licensing fees someone thinks are unconstitutional; an injunction against the continuation of health-threatening conditions in a county jail; an injunction against a strike by public employees. In short, the Boston Motion Session deals with Big League Crises.
To this judicial emergency room not long ago came two men, formerly partners in a small business. The dispute for which they craved the judge's intervention concerned some of the partnership's assets, whose distribution they had not been able to work out: four season box-seat tickets at Fenway Park. To a suggestion from the bench invoking Solomon, they replied (in apparently rare agreement) that neither one could accept any division of the spoils; it must be all or nothing.
Now the Motion Session, by its nature, is not designed for the trial of cases , that is, the hearing of witnesses. Still, recognizing the true nature of the problem, the presiding judge told the parties he would hold a full-scale trial - witnesses, exhibits, and all - at 2 p.m. the next day.
But the following morning, at 11 o'clock, the clerk of the Motion Session received a call from one of the prospective gladiators, reporting that the parties had, in a manner never revealed, settled their dispute.
This foolish little saga, however, tells us a great deal about many of the problems afflicting the court system, not only in Massachusetts, but across the country.
First, it typifies the growing instinct to start litigation. Here the prize was a quartet of sports seats. Other lawsuits that have achieved publicity in the last few years raised a variety of equally serious claims: failure to pack a prize in a Cracker Jack box; a football referee's questioned decision; damages for breaking a date (not an engagement, just a date); improperly raising a child (brought by the now-grown child against the parents); and failure to educate adequately (brought by the parents against the school). One of my colleagues has had to determine custody rights to a runaway adopted dog (and to devise a visitation plan).
These cases, you will observe, do not seek to enforce civil rights. They do not demand adjudication of political inequities. They do not, save in a bad-joke sense, ask the court to expand existing legal remedies in response to changed social conditions. Instead, they all rest on a simple premise: Whenever disappointment strikes, have a judge set things right.
In times of frustration, we turn instinctively to the courts. Not to the Law, that amorphous set of rules embodying the various compromises which govern our lives. Instead, we resort to a specific mechanism, a tool, a gadget, whose sole purpose (we think) is to give us (we think) what (we think) is rightfully ours.
This attitude has become a reflex. A little girl, aged 13 months, had contracted an ailment that was not yielding to the prescribed medication. The doctor, pausing before changing his method, did not convey his thoughts clearly enough to the parents. Upset at what they took to be casual neglect, they brought the child to another physician, who completed the treatment. Meanwhile, the parents consulted a lawyer; less than two weeks after the original pediatrician had last seen the child, he received the lawyer's formal notice of claim; a couple of months later, suit commenced.
Because of various delays - including the absence of an expert witness - the case did not come to trial for over seven years. By that time, it was apparent to the then-presiding judge that nobody really wanted the litigation: not the parents, not the lawyer, not the by-now eight-year-old child, not the grandmother who was to be a witness. The judge, remembering Judge Learned Hand's wise remark that one ought to regard participation in a lawsuit as akin to a serious illness or accident, asked the lawyer if his clients would be content were the doctor to give them, face to face, not an apology for error but an expression of sincere regret. He then asked the doctor's lawyer if such an expression would be forthcoming. After consultation, the lawyers reported affirmative answers; the entire cast assembled; the doctor spoke handsomely; the parents responded graciously; the child grinned; the grandmother beamed.
Why, we may well wonder, could it not have happened earlier? Why did this case, why do the prizeless Cracker Jack and the highly prized mutt come into a judicial system which struggles to deal with a tidal wave of criminal prosecutions and serious civil matters?
Apart from any question of publicity-seeking, these cases seem related to the not uncommon current attitude that whatever one wants, one should have - immediately. This rush for immediacy is not exclusively induced by advertising. Consider the still-unresolved dispute over the propriety not merely of ''projecting'' election results, but of disclosing final East Coast figures before the West has finished voting.
Our national demand for quick results finds a ready response from the legal system. Say what one will about the law's delays, an answer comes much more quickly from a judge or jury than from a legislature, an administrative agency, or a chief executive.
The speed factor is much more readily evident when the plaintiff is seeking not money damages but the kind of injunctive relief - peremptory orders - that the judge sitting in the Boston Motion Session gives. If the transit system wants to make sure an illegal strike does not strangle the city's business, it goes to the Motion Session for an injunction forbidding the strikers from walking out. No legislature or mayor can act with the speed and efficiency of the court: on proper showing, the judge issues the restraining order halting the strike. Anyone violating it may well find himself facing the business end of a contempt order, followed by the open door of a jail cell.
This is useful medicine, taken in appropriate and rare doses. Many times, no doubt, a court has acted in this peremptory manner only after the legislature (as in various redistricting cases) or the executive (in school desegregation cases) has failed or declined to enforce constitutional rights.
To some extent, our everyday reliance on court aid reflects an effort to soothe life's ordinary irritations with the judicial balm. If courts give such effective relief, why should not the panacea cure all ills?
The thought is seductive. But like most such lures, its pursuit entails serious danger. For one thing, the medicine is often too strong for the ailment. In a society shaken by economic and social ills, does anyone really care if a Cracker Jack box turns up empty? At a time when judges are asked to arbitrate life-and-death issues like abortions and the care of terminally ill patients, should a court worry about a stray dog's family ties?
Although the common (and erroneous) concept of the judge's life is one of diminished hours and no heavy lifting, in fact the court system has only a finite amount of time and manpower. If we ask the judiciary to expend some of it arbitrating disputes over baseball tickets and referees' calls, we have to expect less available for rectifying serious personal wrongs and trying criminal indictments.
Beyond that, some kinds of human disagreements simply are not fit subjects for resolution by a judge, a jury, or either. If Jane stands up Jim, the resultant anguish and inconvenience may be the source of temporary despair, perhaps the inspiration for a novel or song. But in the way of the world, people break dates; and coping with the emotional and financial sequelae is just part of growing up.
Finally, the unthinking assumption that every problem can find a court solution invites a people, already beset by the countless attention-distracters of daily life, to give up their own search for concord. If a court is readily available to work out all our difficulties, why should we trouble ourselves to resolve them? That mode of thinking inevitably leads to an abandonment of our own social and political power. Power, when not used, always finds its way into someone's mailed fist. When we forgo the tough job of problem-solving, we may well come to find that we have lost the power to select the answers.