Common Law Decision-Making, Constitutional Shadows, and the Value of Consistency: The Jurisprudence of William F. Batchelder

12 University of New Hampshire Law Review 1 (2013)

New England Law | Boston Research Paper No. 14-02

29 Pages Posted: 1 Feb 2014

Date Written: January 30, 2014

Abstract

This is an essay about common law decision-making, with an emphasis on the value of consistency as it relates to claims about the legitimacy of judicial lawmaking. The legitimacy of judicial lawmaking is ever an issue, particularly, of course, in the cases at the margins — those instances in which precedent points the court in no obviously correct direction. The focus here is on two discrete cases from the New Hampshire Supreme Court — Bonte v. Bonte and Aranson v. Schroeder — in which one justice — William F. Batchelder — played a significant role, joining the dissent in the first and writing for the majority in the second. Each case concerned the question whether the court should, for the first time, recognize a particular cause of action in tort. In the former case, Justice Batchelder did not approve a new cause of action; in the latter, he did. What I seek to explore is whether these cases provide an example of the kind of inconsistency that necessarily undermines legitimacy, or whether a principled distinction between the decisions suggests an interpretive approach which could be usefully applied in other cases in which litigants seek recognition of novel causes of action. In the end I suggest that it may well be constitutional commitments to securing particular individual rights and liberties — both state and federal — that figured most critically in distinguishing between the claim to a remedy that Justice Batchelder rejected in Bonte, on the one hand, and accepted in Aranson, on the other. While neither case was overtly about the dimensions of a particular constitutional right, in each instance specific constitutional commitments cast discrete shadows on the arguments for and against the recognition of a new cause of action. The nature and depth of these shadows may provide some clue as to how we can reconcile two seemingly disparate outcomes.

Keywords: common law, judicial decision-making, causes of action

JEL Classification: K40

Suggested Citation

Friedman, Lawrence, Common Law Decision-Making, Constitutional Shadows, and the Value of Consistency: The Jurisprudence of William F. Batchelder (January 30, 2014). 12 University of New Hampshire Law Review 1 (2013), New England Law | Boston Research Paper No. 14-02, Available at SSRN: https://ssrn.com/abstract=2388242

Lawrence Friedman (Contact Author)

New England Law | Boston ( email )

154 Stuart Street
Boston, MA 02116
United States
617-451-0010 (Phone)

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