Getting to Maybe by Richard Michael Fischl & Jeremy R. Paul

Author:Richard Michael Fischl & Jeremy R. Paul [Fischl, Richard Michael]
Language: eng
Format: epub, mobi
Tags: Legal Practical Resources, Pre-Law, Introduction to Law, Law School Study Aids, Lawyering Skills/Study Aids
Publisher: Carolina Academic Press
Published: 1999-04-30T23:00:00+00:00

a. The unfairness of change (consistency over time)

The exam question may make you Czar of the Universe, but if you choose to adopt any policy different from current law, you need to consider the effects of transition. If applicable law now holds landlords liable only for negligence, then landlord attorneys will challenge any shift on grounds that landlords relied on the old rules. Specifically, landlord lawyers may note that landlords would have paid less for buildings, charged higher rents, and taken out more insurance had they known strict liability would be in effect. Reliance alone will then be put forward as a reason to maintain the status quo. (Note, by the way, that the ubiquitous nature of transition issues proves the silliness of believing that policy questions are somehow softer and less rigorous than purely legal ones. You can’t address the transition issues without knowing what the current rules are. So there’s no faking here, either.)

Moreover, change will also be resisted with the straightforward argument that it’s not fair to treat one group of tenants (those who couldn’t recover under the old negligence rule) differently from a second group (those who would be permitted to recover if we switched to a strict liability rule). Of course, this argument is so general it would defeat any effort to change any rule. But it is used anyway by lawyers arguing against a change in the legal rules, and the fact that it has any appeal at all should remind you that some notion of “consistency” lurks behind virtually all ideals of fairness within legal argument.

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