Suppose we have a law which in a particular application is unjust-- for example, a law against murder under which someone is clearly guilty but in this case the killing was perfectly justified. It might be, for example, that Smith kills Jones at great risk to his own life from the unselfish motive of stopping Jones from blowing up 1,000 people with a bomb--- but using more force than necessary. What are we to do?
One alternative is to convict Smith and then for the executive to pardon him and pin a medal on his chest. I like this one best. Those who disagree can easily see what has been done and attack the executive at the polls, or even impeach him.
A second, similar, alternative is to use prosecutorial discretion and simply not prosecute Smith. This has similar advantages, though it is less transparent, because the prosecutor can claim he is too busy, or the evidence is too weak, even in cases which ought to be prosecuted. I discussed this and the next alternative, jury nullification, on May 3.
The third alternative, jury nullification, is to let the jury refuse to convict. This is a way for ordinary citizens to have influence, but it diffuses responsibility, and the citizen, being an ordinary one, won't suffer politically as an executive or elected prosecutor would.
A fourth alternative-- the one we actually use most-- is judicial nullification. The
judge twists the law to effectively pardon Smith. There are two problems with this:
1. Hard cases make bad law-- the judge may change the law in a way good for this
case but bad for most cases, because the judge doesn't think about the big picture, or
take blame for the problems he causes.
2. If the judge pardons someone, and the judge is unelected,
it is hard to punish him. Moreover, even if the judge *is* elected,
judicial pardons are covert, concealed in legalese, rather than the
straightforward rejection of the law that executive pardons give.
Now I will move to a different topic. I brought the Ames article up at our law-and-econ
lunch yesterday. We had a good
discussion of hiring felons, the rule against perpetuities, grudge lawsuits, an old
lawsuit against the Republican National Committee for battery by security guards under
vicarious liability,
medieval common law vs. equity courts, Subaru Foresters, side airbags, air
conditioners, and laptop keyboards. I learned a wonderful new term:
Infectious invalidity means that the failure of certain transfers may cause interests
that are otherwise valid to fail also. This approach was
taken in New England Trust Co. v. Sanger, 337 Mass. 342, 149 N.E.2d 598 (1958). A trust
provided for income to be paid to the surviving children of the settlor's brother for
life, and on the death of the last surviving child of the settlor's brother, an equal
division of the trust principal was to be made among the issue of the children of the
settlor's brother. The gift to the issue of the brother's children failed, because the
ascertainment of issue could not be made until the brother's children died, and the
brother might have children born after the creation of the trust who might not die
within the permissible period. However, a later trust had been established by the
settlor, which stated that if any provision in the first trust indenture should be
declared invalid, any income or principal which reverted to his estate should be deemed
held in trust by the settlor for the benefit of his brother's children and their issue.
Applying the doctrine of infectious invalidity to avoid a distortion of the settlor's
"clear desire," the court held that the second trust should govern the trust
distribution. It stated that by striking down all the gifts, valid and invalid, made in
the first trust, and by giving effect to the second trust, the settlor's plan for the
income gifts was substantially carried out.
INFECTIOUS INVALIDITY
Here is what the Restatement (2d) of Property says in
� 1.5 comment 7:
This is the same idea as the cy pres doctrine in wills, or, indeed, what courts have
to do if parts of a contract are badly written. But the main thing is the poetry of the
doctrine. In-FEC-tious IN-va-LID-it-Y. I shall have to find an everyday use for it.
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