Kavanagh, Thomas G.

English

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DePaul Law Review Volume 19 Issue 3 Spring 1970 Article 7 The Ethics of Urban Law and Practice: A Challenge for the Common Law Thomas G. Kavanagh Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Thomas G. Kavanagh, The Ethics of Urban Law and Practice: A Challenge for the Common Law, 19 DePaul L. Rev. 496 (1970) Available at: https://via.library.depaul.edu/law-review/vol19/iss3/7 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact digitalservices@depaul.edu. THE ETHICS OF URBAN LAW AND PRACTICE:A CHALLENGE FOR THE COMMON LAWTHOMAS G. KAVANAGH*W EBSTER'S New International Dictionary indicates that theword "ethics" is used in several senses, one definition beingV"moral principles, quality or practice; a system of moralprinciples."' It is in this sense, and from the perspective of anappellate bench, that this article will describe the "ethics"-that"system of moral principles"-which should apply to urban law andpractice. In this regard it is particularly useful and appropriateto cast these "moral principles" in the light and terminology of thecommon law. Brief inquiry will be made into what ought to bedone by those involved in the field of jurisprudence-what studentsand law professors should do; what practicing lawyers should do;and what judges should do-all in the tradition and spirit of thecommon law.Law has been described as an unending colloque between thepeople. When this colloque has resulted in the ascertainment thatdecisions, even those buttressed by long lines of supporting cases,no longer have achieved justice because of changed circumstances,American courts have overruled them. And so it must be. AsJustice Cardozo observed: "The inn that shelters for the night is notthe journey's end. The law, like the traveler must be ready for themorrow. It must have the principle of growth."2  The judicialprocess is a process of education, self-scrutiny, and self-correction-a process in which the courts, the legal profession and the publicall participate.Urban law and practice is certainly the scene of the action af-fecting most Americans today. Ninety percent of our population* JUDGE KAVANAGH is a Justice of the Supreme Court of Michigan and hasbeen involved in the area of urban law both as a lawyer and judge for many years.1. WEBSTER's NEW INTERNATIONAL DICTIONARY 780 (3rd ed. 1961).2. CARDOZO, THE GROWTH OF THE LAW 19-20 (1924).496ETHICS IN URBAN LAW AND PRACTICEcurrently lives in what may be termed urban areas. This very factcalls for changes in our rules for interpersonal relationships, thatis, our laws. The problems faced by the city dweller are only re-motely related to the problems faced by the rural resident. One wholives in the city must depend on others to supply his needs. Hisfood, clothing, shelter and recreation are almost always suppliedby others who themselves are conversely dependent upon urbandwellers. His police and fire protection, his family's education, andhis water and waste disposal services are supplied by his local gov-ernment. These suppliers, both private and governmental, form alarge part of his existence, and his relations with them are of greatand immediate concern to him. Rules regulating these relationshipsare known as "urban law." The old rules regulating conduct inan agrarian economy cannot efficiently and fairly order the life ofa modern urban population; new rules must be formulated.Knowing this, where should we focus our attention? What stepsshould be taken? First, both the students and professors in thelaw school should be encouraged to continue in their studies. Wehave only recently become aware of the great value of graduatestudy to our profession. For the first time, it seems, it is now per-ceived that the mass and complexity of legal materials require in-depth study. Graduate work is the surest beginning to mastery of aspecialty. Graduate work is virtually a prerequisite for the develop-ment of advanced skills in most other fields. In non-legal fields,gifted students are encouraged and generally given financial assist-ance to carry on their work. This procedure contributes greatly tothe educative process, and hence, advancement of the discipline.Today's student of the law, with his growing awareness of thevalue and necessity of involvement and his heightening passion forjustice will respond in similar fashion. The contribution which thesestudents will make can transform our jurisprudence and save oursocial soul. These students and professors can also expand andimprove inter-disciplinary studies and co-operative research in thenatural and social sciences. The benefit to jurisprudence from thisactivity can be great. The success of this concerted effort will, ofcourse, properly and primarily depend on lawyers since "the lawcomprehends the total range of human conduct and behavior." Theancient motto nihil humani, a me alienmum puto (nothing of human4971970]DE PAUL LAW REVIEWinterest do I consider foreign to my kin) should have great meaningfor the student of the law.What should a practicing lawyer do? The view from an ap-pellate bench indicates that most of the success the common lawhas enjoyed in meeting the changing needs of society from time totime has been the responsibility of the practicing bar. This is, in ef-fect, stability in change: The unchanging insistence on the principlesof justice and the application of right reason to the case at hand,which is the hallmark of the true lawyer, has given life and meaningto the common law. It has illumined the mind and moved thewill---even of judges-to do justice. The true lawyer should andmust keep on trying. 3What should judges do? My view from my bench-I cannotguarantee that this will be a majority opinion from my colleagues-is that judges should, first of all, listen. The lawyers who are pre-senting the case are hopefully better informed about the points of lawinvolved, and it is their task to inform the court. It is the judge'sduty to become informed. In this connection, it is well to recallthe story of the English barrister who was arguing his case beforea rather impatient judge. He had been going on for some timewhen the court interrupted to observe: "Counsel, you have beenarguing for forty-five minutes and the court, I'm sorry to say, is notone bit wiser than when you started." The barrister courteouslyreplied: "Not wiser, my lord, but hopefully better informed."Secondly, judges must study. The tools of research and the im-provement of the science of legal libraries have greatly facilitatedthe judge's task of becoming informed. The judge who does notkeep abreast of the literature of law, as well as of other disciplines,is not doing a complete job. Ideally the common law judge shouldbe the best informed person in the community when he renders his3. I have primary knowledge of what a lawyer's persistence can do aboutchanging the application of an obsolete rule of law. Indeed, I know of two instancesinvolving the same lawyer in two different cases; I sat on both as a member ofthe Michigan Court of Appeals. In the first case, I voted against his position, asdid the majority, but the Supreme Court reversed our ruling. In the second, afterthe Supreme Court had by-passed our court, but split evenly on the question andthen referred the matter to the appellate court; we sat en banc and voted six tothree in favor of his position. I voted "right" this time. Careful study, meticu-lous preparation and indomitable determination on the part of this lawyer hadbrought our law a little more up to date in these two instances.[Vol. XIX:496ETHICS IN URBAN LAW AND PRACTICEjudgment-for that is implicit in his position.The inherent capacity of the common law for growth and changeis its most significant feature; its development has been determinedby the social needs of the community which it serves. The commonlaw is constantly expanding and developing in keeping with advanc-ing civilization and the new conditions and progress of society. Itis adapting itself to the gradual change of trade, commerce, arts,inventions, and the needs of the nation. The fact that no caseremotely resembling the one at issue is uncovered does not paralyzethe common law system, which is endowed with judicial inventive-ness to meet new situations. It is said that public policy is thedominant factor in the molding and remolding of common law prin-ciples so they may soundly serve the public welfare and the trueinterests of justice. Furthermore, the social and economic mutationsneed not be purely evolutionary changes in customs, usages, andindustrial practices; they may spring from legislation which has givendirection to that social development, though in the beginning suchenactments were not designed to supplant the common law outsidethe range of their specific application. Statutes, including those ofrecent origin, play a part in the formation of the common law, and,like court decisions that are not strictly analogous, sometimes pointthe way into virgin territory.The nature of the common law requires that each time a rule oflaw is applied, it be carefully scrutinized to make certain that theconditions and needs of the times have not so changed as to makefurther application the instrument of injustice. Whenever an oldrule is found unsuited to present conditions or unsound in itself, itshould be set aside, and a rule declared which is in harmony withthose conditions and meets the demands of justice. What can thecommon law accomplish in the urban law setting?Let us explore the possibilities the common law offers to solveour urban problems, not as a check-list leading toward a single solu-tion--one answer good for all time-but rather as a reminder thatchange and adaptation is the condition of living man. What I urgeis the reaffirmation of an attitude of intolerance of injustice, and ofimpatience with temporizing-an attitude of receptiveness to reason-able proposals for solutions. The answer is found in the recenttrends in our courts, as seen in their decisions and interpretations of1970]DE PAUL LAW REVIEWnew legislation, which show the interplay and effect of law on oururban society. As our governments-city, state and national-spread, and as their action touched more people more often andmore intimately, the courts found it necessary to strike down theshield of governmental immunity. As corporations reached goliathsize, they became more like government than like the "mythicalprivate person" once envisaged. Their collective wealth and strengthbecame felt in more ways in more areas of life. The law's responseto this growth has been to provide more and more legislation anddecisions designed to control this creature. The impact of the growthof private as well as municipal corporations has evoked great socialresponse. The organization of labor and the statutes permitting,controlling and relating to it-workman's compensation, social se-curity, unemployment compensation, the Federal Employees Lia-bility Act, the National Labor Relations Act, the Fair Labor Stand-ards Act, the antitrust laws and many others-are all responses tothe corporate development which largely industrialized society.Our concern with corporations does not end with their structure.Industries build towns, produce products, and, in the process, vi-tally affect our society and environment. Products liability, munic-ipal responsibility, and ecological pollution are areas posing currentproblems which our courts are asked to solve. Think of the pro-found effect that even one product of this corporate industry, theautomobile, has had on our society. The automobile moves us faster,kills more people, and has made more fortunes than any machine inhistory. Its use has made the population so mobile that old doc-trines, such as lex loci and contributory negligence, appear to beready for discard as no longer properly serving society.Another area, that of the social sciences, is often overlooked whenwe talk of the common law, but it has had immeasurable impact onour urban society. Entirely apart from the criminal law as de-veloped pursuant to constitutional guidelines laid down by the UnitedStates Supreme Court is the intelligent application of common lawprinciples in Brown v. Board of Education,4 which became a lessonfor us all. In that case the Court did make use of the learningof our nation's social scientists. By applying this learning to juris-4. 347 U.S. 438 (1954).[Vol. XIX:496500ETHICS IN URBAN LAW AND PRACTICEprudence, the common law became expressive of and responsive to theneeds of society. When we look at our cities themselves we seethem growing and decaying: they are drab, yet exciting; secure, yetthreatening; enriching, yet impoverishing. Such as they are, they arethe stages upon which the drama of our daily lives is enacted. Thescript must be constantly rewritten to give meaningful participationto the new members of the dramatis personnae. This is the pur-pose of the common law.Thus far this article has focused on what each of us-the student,the professor, the lawyer, and the judge-must do in general, and Ihave tried to describe what I perceive to be the proper working ofour common law system. But now, perhaps because of the prob-lems of my own position, I want to mention some other considera-tions. I do not specifically know how other states deal with theproblem of superintending the administration of justice, but in Michi-gan, the constitution specifically charges the Michigan Supreme Courtwith the responsibility for general superintending control over thecourts, which are all divisions of our one court of justice. Thisthen places on us the duty of making the courts available to thepeople. Courts must not become unavailable because of the cost oflitigation; but this is what is happening today because of the im-mense backlog of cases which is now so prevalent. It is said:"Justice delayed is justice denied." I say that "justice delayed" is acontradiction in terms. Justice delayed is no justice at all. When ittakes over three years to obtain a hearing on a claim for damages, itcannot be said that an injured man has justice. While in Michiganthe immediate responsibility for rectifying this situation is upon theSupreme Court, a failure of justice anywhere diminishes us all.Teachers must continue to remind their students that whatevertechnical skills and tactics they may employ in furtherance of theirclient's interest, they must keep in mind that the common obligationto the profession is to achieve justice. Delay as a tactic may not al-ways properly be available. Students must learn this lesson wellin order that when they engage in practice they will discharge theirresponsibility as an officer of the court with pride and efficiency.And judges must rededicate themselves to the accomplishment ofthe task of their high calling-administering justice.I have presumed to exhort you and to express my views on the1970]502 DE PAUL LAW REVIEW [Vol. XDI:496work of each of us-students, professors, practitioners and judges.I do so not in the fancy that I contribute some original thought5 orclever advancement or that I have a greater dedication to our pro-fession. I do so out of a conviction that our beautiful system willbe destroyed if we do not use it. Unless our legal system is relevantto our times and our system of administering justice is effective, itwill and should be replaced. In my view-from my bench-theseare the times for which our system was intended; it has the flexibilityto meet the challenge-we must vow to properly exercise that flexi-bility.5. I wish to acknowledge my gratitude to G. F. Curtis, Dean of the Universityof British Columbia, for contributing a number of the ideas herein espoused.

The Ethics of Urban Law and Practice: A Challenge for the Common Law

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The Ethics of Urban Law and Practice: A Challenge for the Common Law

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