The following is a reflection piece I wrote for my Foundations of Justice class, the kind of class most law schools do not offer, one of the reasons i really appreciate St. Thomas.
“How negligent was the rape victim?” was the question in Wassell v. Addams, a case in our Torts class meant to illustrate the consequences of various comparative fault systems. Should a victim that is also negligent be allowed to recover from another negligent party? What if they are more than 50% at fault? And if the court of appeals disagrees with the jury’s decision, can they over rule it? These were the issues that the text sought to elucidate.
In Ms. Wassell’s case, after opening the door to her motel room at 2am, she found a nicely dressed, but “confused” man at her door asking for a glass of water, she returned with the drink to find him sitting at the small table in the room. Shortly afterward he raped her.* A young and naive women from a small town, she sued the motel owner for not warning her of the dangers of the neighborhood. But a “hardened jury” in her lawyer’s words, found her to be 97% negligent. In an interesting twist, the motel’s 3% of negligence covered her medical and counseling bills to the dollar.
What stood out to me at the time was not so much the case, problematic as it was, but the dynamics of the class discussion. The usual suspects made the usual arguments, reflecting if not the ordinary religion of law school, then at least the ordinary religion of their upbringing. Crampton’s comment that, “law students… aptitude for verbal articulation increases, but they rarely stop to listen to others” was apt.
The case and the following discussion illustrated many of the same themes raised by our discussion of Buck v. Bell and The Ordinary Religion of the Law School Classroom in the first week of class. During the class discussion of Wassell, it was not a question of whether she was negligent, but how negligent she was? “Wait a second” I thought. “Since when is giving a cool drink of water to a stranger negligence? What is negligence, really, legally and morally?” A quick google search refreshed my memory on the legal definition as I sat in class. “How do I frame a conversation in which she is understood to be completely not negligent?” (Legally, she probably was negligent to some degree. The bar for mere negligence is quite low.)
But was I sufficiently considering the view point of the small business owner? Was justice served by making him pay? Was he truly negligent, or had I simply cast my lot with the most obvious victim and ignored others. Was I merely serving as one of Crampton’s thoughtless social engineers? His discussion of the instrumental nature of law, the hired gun, and the social engineer were clearly on display in the class discussion that day. Was law merely a way to fix the economic problems created by the rapist, or were larger questions in play? Many in the class were merely hired guns, taking the side they were pre-disposed to defend, myself included.
In the film The Usual Suspects, police interview the various people potentially responsible for a horrendous crime, each a cliché in his own way. Each suspect points to an evil mysterious man not yet apprehended, one so cunning, evil and feared that no one had ever met him. Whether he even existed was a question throughout the film. If he did exist at all, no one knew the true identity of the faceless man, because he was in fact, a forgotten every man that no one would suspect. In class, the usual suspects, the ones who usually raised their hands made their arguments for or against Ms. Wassell. But as in the film, where few considered the less obvious suspect, few addressed the underlying issues. True, the rapist was obviously the primary cause, but in a lawsuit between Wassell and Addams, it was as if he did not exist. Few thought to consider the real role of the lawyer and counselor when two largely innocent parties are left to pick up the pieces after a crime. Few considered the deeper questions society needs to ask about the how and the why, and how the community can facilitate healing.
In Buck, the authorities went out of their way to put in place all the legal safe guards’ one could want, making sure the given act, mandatory sterilization of the "retarded," was done carefully and with due process. But what of the act itself? Whether state sponsored sterilization in Buck, or an erroneous understanding of negligence in Wassell, we have to think more deeply about the kinds of people we want to be and how our role’s as lawyers and legal counselor’s affect others.
* In multiple instances over the last semester I would turn to the final case for the evening, and be smacked in the face with a short phrase like, “the children drowned” or “then he raped her” a short phrase with a breadth and depth of meaning which I usually preferred to ignore. But sometimes my emotions briefly got the better of me. “God damn” I would think, offering not a curse, but a prayer. It seems that the brevity a lawyer learns to write with allows her to pen short phrases loaded with significantly more human emotion then most of us care to acknowledge.