Keith Mack
Hard cases make bad law is a famous legal adage or maxim that means an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases. In other words, a general law is better drafted for average circumstances as this will be more common. The adage's origin is often attributed to Judge Robert Rolf in the case of Winterbottom v. Wright in 1842, but it was popularized by US Supreme Court Justice Oliver Wendell Holmes Jr. in 1904. The validity of the adage has been questioned, with some scholars arguing that it is misleading and should be deleted from legal vocabulary, while others propose variations such as bad law makes hard cases or hard cases make good law. The concept of hard cases has been analyzed through mathematical models to understand their impact on judicial practices and the creation of legal doctrines.
| Characteristics | Values |
|---|---|
| First recorded use | Judge Robert Rolfe in Winterbottom v. Wright in 1842 |
| US Supreme Court Justice Oliver Wendell Holmes Jr. in Northern Securities Co. v. United States in 1904 | |
| V.S. Lean in Collectanea in 1903 | |
| Meaning | An extreme case is a poor basis for a general law that would cover a wider range of less extreme cases |
| When a generally sound law would impose a special hardship on someone, a court may be tempted to distort the law to avoid the hardship | |
| A general law is better drafted for the average circumstance as this will be more common | |
| Converse | "Bad law makes hard cases" |
| "Hard cases make good law" | |
| "Unjust decisions make good law" |
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What You'll Learn
Hard cases make bad law
"Hard cases make bad law" is a famous legal adage or maxim that suggests extreme cases are a poor basis for general laws intended for less extreme, more common circumstances. In other words, a law should be drafted for average circumstances rather than exceptional ones. The phrase has been traced back to at least 1837, when a judge used it in a case involving a parent and the maintenance of their children. The expression was notably used by US Supreme Court Justice Oliver Wendell Holmes Jr. in 1904.
The validity of this adage has been questioned, with variations such as "Bad law makes hard cases" and "Hard cases make good law" being proposed. Some scholars argue that the phrase is misleading and should be discarded, as it implies that unjust decisions can make good law. They suggest that equity should be invoked to prevent injustice and mitigate the rigidity of the law.
The converse of the adage, "Bad law makes hard cases," has also been discussed. This perspective highlights the tension between maintaining a logically coherent legal system and ensuring the well-being of individuals. It suggests that legal professionals may prioritize the consistency of the system over the welfare of those it affects.
The concept of "hard cases making bad law" has been analyzed through various lenses. One theory suggests that strict legal doctrines can lead to distortions in substantive law by channeling lawmaking towards hard cases. Another perspective focuses on the role of strong remedies, arguing that they can backfire by causing courts to compromise underlying rights to avoid applying those remedies in challenging cases.
Despite the criticism and alternative interpretations, "Hard cases make bad law" remains a well-known and frequently used phrase in Anglo-American law. It highlights the complex interplay between case facts, judicial decision-making, and the potential for laws to be distorted to avoid hardship.
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Bad law makes hard cases
The legal maxim "hard cases make bad law" suggests that an extreme case is a poor foundation for a general law intended for less extreme cases. In other words, a general law is more suitable for average circumstances as they are more common. The validity of this maxim has been questioned, with variations such as "bad law makes hard cases" also being considered.
The concept of "hard cases make bad law" has been attributed to US Supreme Court Justice Oliver Wendell Holmes Jr., who used it in his judgment of Northern Securities Co. v. United States (1904). Holmes argued that "great cases" are often considered "great" due to an immediate overwhelming interest that distorts judgment. This can lead to the strict application of a generally sound law imposing a particular hardship, tempting the court to distort the law to avoid this outcome.
The jurist John Chipman Gray discusses the converse, "bad law makes hard cases", acknowledging the temptation for legal professionals to prioritize the logical coherency of the legal system over individual well-being. This variation suggests that poorly constructed laws can lead to challenging cases that are difficult to adjudicate fairly.
The legal scholar Arthur Linton Corbin reversed the adage in an article entitled "Hard Cases Make Good Law." He argued that when a stated rule of law works an injustice in a particular case, it is either denied outright or undermined through various means. This perspective highlights how the application of bad law can result in hard cases that require creative solutions to achieve a sense of justice.
While the expression "hard cases make bad law" has been questioned and debated, it continues to hold relevance in legal discussions. The concept highlights the complex relationship between challenging cases and the potential for those cases to influence the creation or interpretation of laws in a way that may not accurately represent the average circumstance.
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Hard cases make good law
The legal maxim, "hard cases make bad law", is based on the idea that an extreme case is not a good reason to create a general law that would cover a wider range of less extreme cases. In other words, a general law is better suited to average circumstances as they are more common. The phrase was used by US Supreme Court Justice Oliver Wendell Holmes Jr. in 1904, and its validity has been questioned since.
The opposing view, "hard cases make good law", suggests that when a stated rule of law causes injustice in a particular case, the rule is likely to be denied or undermined. This view is supported by jurist John Chipman Gray and legal scholar Arthur Linton Corbin. Gray observed that legal professionals may value the "logical coherency of the system itself" over individual well-being. Corbin, in an article entitled "Hard Cases Make Good Law" (1923), wrote:
> When a stated rule of law works injustice in a particular case; that is, would determine it contrary to 'the settled convictions of the community,' the rule is pretty certain either to be denied outright or to be undermined by a fiction or a specious distinction.
The concept of "hard cases" in law refers to situations where legal materials do not provide clear answers, and judges must apply contestable value judgments. Economic models of litigation predict that easy cases will settle, leaving only hard cases for trial and appellate courts. Judicial nominees often deny that value judgments play a role in their decisions, instead claiming to be neutral and impartial arbiters. However, critics argue that this rhetoric is unattainable and that value judgments are inevitable in hard cases.
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The role of equity
The concept of equity in law has a long history, dating back to the writings of Aristotle and Roman law. It is a separate body of law with its own rules and principles, developed in the English Court of Chancery, and is designed to provide legal remedies in cases where common law falls short or is too rigid to deliver a fair resolution. Equity allows judges to make decisions based on general principles of fairness and flexibility, particularly in situations where the strict application of common law could result in injustice.
In the United States, the federal courts were granted jurisdiction over both common-law actions and suits in equity by the framers of the Constitution. The federal courts' equity jurisdiction pertains to a wide range of litigation situations, and it is separate from certain types of suits. This separation was emphasised in the Process Act of 1792, which ensured that judges did not apply equitable doctrines to cases governed by common law. The Supreme Court also played a role in maintaining the separation and uniformity in federal equity jurisprudence, issuing detailed rules in 1822, 1842, and 1912.
Equity continues to be a cornerstone of Australian private law, as demonstrated by the High Court of Australia's affirmation of traditional equitable doctrines in a series of cases in the 1980s. In 1972, New South Wales introduced reforms that empowered its Supreme Court to grant relief in either equity or common law, emphasising that equity would prevail in conflicts between the two.
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How hard cases affect judge-made law
"Hard cases make bad law" is a famous legal aphorism or maxim in Anglo-American law. It suggests that a law based on an extreme case may be a poor foundation for a general law intended to cover a broader range of less extreme cases. In other words, a general law is more suitable for average circumstances, as these are more common. The original meaning of the phrase referred to cases where the law severely impacted an individual, arousing sympathy for their situation.
The adage has been traced back to at least 1837, when a judge used the phrase in a ruling in favour of a parent against the maintenance of her children. The judge's wording suggests that the phrase was not new at that time. The expression was later used in 1904 by US Supreme Court Justice Oliver Wendell Holmes Jr. in his judgment of Northern Securities Co. v. United States. Holmes made a utilitarian argument, stating that "great cases like hard cases make bad law" due to an "accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment".
The impact of hard cases on judge-made law has been a subject of debate among legal scholars. While some argue that hard cases can lead to distortions in the law, others propose that they can also drive positive changes. Sepehr Shahshahani, in their work "When Hard Cases Make Bad Law: A Theory of How Case Facts Affect Judge-Made Law", introduces a mathematical model of adjudication that aims to define the conditions under which a court confronting a hard case may make bad law. This model highlights how hard cases may have distorted not just specific rules but entire fields of law, such as trademark genericide and Fourth Amendment law.
Additionally, Shahshahani's model reveals three broader institutional implications. Firstly, it challenges the traditional view that the primary role of equity is to protect individuals from hardship, instead suggesting that equity protects the law from being distorted to favour specific parties. Secondly, it demonstrates how strong remedies can lead courts to compromise underlying rights to avoid applying those remedies in hard cases. Lastly, it shows that a strict standing doctrine can distort substantive law by channelling lawmaking towards hard cases. These insights contribute to our understanding of how hard cases can influence judge-made law and the strategies employed by the legal system to guard against potential distortions.
While the adage "hard cases make bad law" carries weight, it is important to acknowledge that the concept of a ""hard case" lacks precise conceptualization. This ambiguity limits our ability to fully explore the implications of the adage and develop effective strategies to address the challenges posed by hard cases. Nonetheless, the recognition of the potential pitfalls associated with hard cases can guide judges and legal professionals in their decision-making processes, ensuring that the law remains just and equitable, even in complex and emotionally charged situations.
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Frequently asked questions
The phrase "hard cases make bad law" is a legal maxim or adage that means an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases.
A "hard case" is a legal dispute where the law is unclear or does not provide a clear answer. These cases constitute roughly 10% of cases, according to some estimates.
An example of a "hard case" is *Winterbottom v. Wright* in 1842, which required a judgment on whether third parties are able to sue for injury.
The opposite of the phrase is "hard cases make good law", suggesting that a stated rule of law that works injustice in a particular case will be undermined.
