On the other hand, if a judge sitting alone hears a simple tort or contract case falling within a familiar framework and analogous to jury litigation, it is perhaps the best practice for him to state his findings of fact from the bench in those pungent colloquial terms with which the traditional English judge addresses the average man of common sense. When credibility of witnesses is the essence of the controversy, the parties and the lawyers like to have judges act as promptly as juries and on the basis of fresh impressions.
Where the search for truth is more subtle, the trial court faces the same stylistic challenge as the appellate court. Fortunate are those who, like Judge Learned Hand, have the gift of many tongues. His admiralty opinions breathe salt air, his commercial cases echo the accents of the market place, and his patent rulings reflect an industrial society developed by Yankee ingenuity. Even those whose narrower experience makes them stutter, occasionally strike a subject where they have both the sensitivity and the self-confidence to put the story simply and selectively. But in most cases we average judges can only try, without much hope, to make our summations of facts pithy, sympathetic, and illuminating.
While, in summarizing the facts, we trial judges may seek to imitate our superiors on the higher courts, when we wrestle with the substantive law we should not regard ourselves as the appellate judges writ small. Our freedom is inevitably more narrowly exercised. Most of the time we do not see the points of difficulty too clearly. With us the pace is quicker, the troublesome issues have not been sorted from those which go by rote, the briefs of counsel have not reached their ultimate perfection. Yet even when we have the clearest perception of the legal issues, certain inhibitions are peculiarly appropriate to restrain a judge who sits alone and subject to review by judges higher in commission.
If the trial judge is presented with the claim that a legislative act is unconstitutional, he ought to remind himself that every possible presumption is in favor of the validity of the legislation and that in certain constitutional controversies a district judge has no jurisdiction to act unless he is sitting with two other judges. Though in a constitutional case or any other case he must not surrender his deliberate judgment and automatically accept the views of others, he can ordinarily best fulfill his duty in a constitutional case by explicitly stating for the benefit of an appellate court any doubts he has, without going so far as to enter a decree against a statute which has commanded the assent of a majority of the legislature and, generally, of the executive.
If there is no constitutional question and the trial judge is presented with a judicial precedent or precedents contrary to his own view of what would be the sound rule of law, the problem is more subtle. First, take the situation where the hostile precedents are in the tribunals that sit on review of his own decisions. If the precedents have been so severely impaired by recent cases that it is reasonably clear they no longer represent the present doctrine of the appellate court, the trial judge is generally thought to be free to minimize their directive force, though there is strong opinion to the contrary. Where the precedent has not been impaired, the balance is in favor of the trial judge following it in his decree and respectfully stating in his accompanying opinion such reservations as he has. The entry of the decree preserves the "priority and place" which Shakespeare reminded us were indispensable to justice. Moreover, the reservation in the opinion promotes the growth of the law in the court where it most counts, for if the criticism of the precedent be just, the appellate court will set matters straight, and any trial judge worthy of his salt will feel complimented in being reversed on a ground he himself suggested. No trial judge of any sense supposes his quality is measured by a naked tabulation of affirmances and reversals.
Where the hostile precedents come from a judge of equal rank or a court not in the direct line of superior authority, I doubt whether there should be absolute rules of deference. If the precedent is from a sitting judge in one's own court and represents his mature reflection, the argument in favor of following it rests not only on the appropriate amenities, but also on profounder considerations of equality in the treatment of litigants. But the situation is different where the precedent comes from an inferior court sitting in another geographical area. In the federal system conflict of judgments between the inferior courts is one of the ways that the Supreme Court is led to grant review of legal questions. And the most effective method of getting a significant issue over the Washington threshold is to challenge overtly a court in another circuit.
We federal judges are told that in diversity jurisdiction cases our duty is to follow the state law. Most of the time that is readily discoverable. But what are we to do when no state law has been declared, or the state law has not been the subject of reconsideration for a generation or more? Take unfair competition cases, at least before the Lanham Act. Until the end of the rule of Swift v. Tyson the state law lay relatively dormant. Most of the important controversies in this field had always been adjudicated in the federal courts according to a general jurisprudence. What happens when these federal cases are not binding authorities? Shall we seek to evolve the state rules exclusively from state precedents, some of which are quite old, and ignore the federal precedents?
Shall we be equally conservative in corporation cases? A short time ago a policyholder brought a derivative suit in the United States District Court for the District of Massachusetts against an insurance company without first seeking to enlist the aid of his fellow policyholders. The reported Massachusetts cases involved stockholders' suits. None of them was precisely in point. Some of the rulings were not addressed to considerations recently stressed by other courts and by legislatures and administrative agencies. Should the federal court follow closely what the state has already said, or should it keep one eye on the national trend? Or look at the case of a stockholder seeking to procure an equity receivership for the purpose of liquidating a corporation. The only Massachusetts decisions are old and negative. The modern trend is favorable. Shall the federal court assume that the Massachusetts state court will follow its predecessors or its contemporaries?
The impression that I gather from the cases is that a federal judge sitting in a diversity jurisdiction case is less willing to depart from obsolete doctrines than when he sits in a purely federal case. Every time judges are called upon to apply the law of a foreign jurisdiction, are they not inclined to give undue weight to the recorded landmarks and to underestimate the mobile qualities and the thrusts of principle we discern in our domestic law?
And now, before I conclude, may I address myself to a doubt which should perhaps have been tackled at the outset. Are the usages followed by trial judges more than patterns of behavior; are they law in any sense; and even if they are law, are they too disparate and detailed ever to have an honored place in the study of jurisprudence?
Concede that the normative practices which we have been reviewing fall far short of the Austinian command of the sovereign. For a judge who chooses to depart from these particular standards does not lay himself open to reversal by courts of superior authority. And yet that which is generally approved as being good and being within the reach of average men does in time become law in the strictest sense. This, we all know, is how the law of fiduciaries and the law merchant have grown. And the principle applies in equal measure to the law governing trial judges. What is the whole law of procedure but the crystallization of judicial custom? The trial judges made the law of evidence by their usages; and perhaps now they are unmaking it by their usages. The revocation is hidden by appellate courts which treat departures from the proclaimed evidentiary rules not as though they represented new doctrine, but as though they were insignificant nonreversible errors.
What are the rules governing measure of proof? Today we say there exist in the federal courts only two standards: the criminal standard of proof beyond a reasonable doubt and the civil standard of the preponderance of the evidence. And yet already in some special classes of cases where fraud is the central issue, we seem to see the emergence of an intermediate rule, the requirement that the evidence shall be clear and convincing. This intermediate requirement reflects the unspoken practice of trial courts to move with extreme caution in fastening a finding of immoral conduct upon a party litigant.
What shall we say of remedies which trial judges have newly evolved in equitable suits founded on statutes? Novel remedies begin as permissible exercises of discretion by the court of first instance. They win approval and imitation by other similarly circumstanced courts. And in the end what was discretionary has become mandatory. Here is the common law at work—a progressive contribution by the judges, trial as well as appellate; less important perhaps today than formerly, and always less important than the additions made by legislative bodies; but more clearly ethical in its nature because the consent on which it rests has undergone a longer, more intimate, more pragmatic test.
Let us not suppose that because our jurisdiction is limited, because so much of our work goes unreported, because we are immersed in the detail of fact, we trial judges are clothed with small responsibility in relating law to justice. It is we who make the law become a living teacher as we transmit it from the legislature and the appellate court to the citizen who stands before us. It is we who watch the impact of the formal rule, explain its purpose to laymen, and seek to make its application conform to the durable and reasonable expectations of our communities. It is we who determine whether the processes of common-law growth shall decay or flower with a new vigor.