FC: Charles Wyzanski: "A Trial Judge's Freedom and Responsibility"

[Declan McCullagh <declan () well com>]

Some thirty years ago, Judge Charles Wyzanski became the first U.S. judge 
to break a single company into pieces. That case was _U.S. v. United Shoe 
Corp_. During a hearing last week in the Microsoft case, both sides cited 
_United Shoe_ to buttress their arguments:
  http://www.wired.com/news/politics/0,1283,36581,00.html

Attached is a lecture that Wyzanski gave in 1952. Keep in mind that 
Wyzanki, previously a Justice Department attorney and secretary to Judge 
Learned Hand, did *not* break up United Shoe until the Supreme Court 
essentially overruled him and told him he must:
  http://laws.findlaw.com/us/391/244.html

Microsoft's final court documents are due today. Judge Thomas Penfield 
Jackson could rule anytime thereafter, and probably sooner than later.

-Declan


Judge Charles E. Wyzanski, Jr.
1952 Cardozo Lecture
The Association of the Bar of the City of New York.

   The ethical test of a judge is not whether his judgments run parallel
   to the judgments of a moralist, but whether the judge administers his
   office true to its traditional limitations as well as to its
   aspirations. From the day he takes his seat he is aware that while he
   has more personal discretion than the books reveal, he is hemmed in by
   impersonal usages, canons, and legitimate expectations. While he has
   choice, he cannot exercise it even to his own satisfaction unless it
   is disciplined according to standards. The minima are supplied by
   reversals administered by appellate courts. Those, however, are
   necessarily negative in nature. What counts more is the establishment
   of affirmative norms of judicial behavior. One man knows the practices
   of his own and perhaps a few other courts; so, to evolve standards, he
   must become critical of his own shortcomings, attentive to the
   reactions of the bar, informed of the unrecorded practices of his
   colleagues, and, above all, reflective about subtle differences in the
   tasks assigned to him.

   The trial judge's first problem is his relationship to the jury. Much
   of the debate about the jury system rests on political premises as old
   as the eighteenth century. Montesquieu, Blackstone, and their
   followers contended that lay tribunals with a plurality of members
   were the safeguard of liberty. Bentham and more modern reformers
   replied that when the rule of law itself is sound, its integrity
   requires that its application be entrusted to magistrates acting
   alone. In their view, responsibility is the secret of integrity, and a
   reasoned choice is the secret of responsibility.

   Experience will not give a sovereign answer to these warring
   contentions. Yet the disagreement can be narrowed if the question of
   the jury's utility is subdivided with specific emphasis on separate
   types of suits.

   The importance of this subdivision is concealed by Chief Justice
   Hughes's striking phrase that a federal judge is the "governor of the
   trial." Some regard this as an implied acceptant of the practice of
   English courts. They construe it as a broad invitation to exercise in
   all types of cases a right to comment upon the evidence, provided of
   course that the judge reminds the jury in his charge that they are not
   bound to follow the court's view of the facts or the credibility of
   the witnesses.

   Such boldness is not the surest way to end disputes in defamation
   cases. In 1944 a discharged OPA official brought a libel suit against
   the radio commentator, Fulton Lewis, Jr. At one stage in the
   examination I suggested that Mr. Lewis's counsel was throwing pepper
   in the eyes of the jury; and at the final summation I indicated
   plainly that, although the jury was free to reject my opinion, I
   thought Mr. Lewis had been reckless in his calumnious charges against
   the ex-OPA official. It makes no difference whether what I said was
   true; I should not have said it, as the reaction of the bar and public
   reminded me. A political libel suit is the modern equivalent of ordeal
   by battle. It is the means which society has chosen to induce bitter
   partisans to wager money instead of exchanging bloody noses. And in
   such a contest the prudent and the second-thinking judge will stand
   severely aside, and will act merely as a referee applying the Marquis
   of Queensberry rules.

   Later a libel suit was brought by James Michael Curley against the
   publisher of the Saturday Evening Post for having said that Mr. Curley
   was a Catholic of whom His Eminence Cardinal O'Connell would have no
   part. Who knew better than the Cardinal whether that charge was true ?
   Mr. Curley, the plaintiff, did not call the Cardinal to the stand. The
   defendant's distinguished counsel did not desire to find out what
   would be the effect upon a Greater Boston jury if a Protestant lawyer
   should call a Catholic prelate to the witness stand. Should the court
   have intervened and summoned the Cardinal on its own initiative? The
   Fulton Lewis case gave the answer. In a political libel suit the judge
   is not the commander but merely the umpire.

   Those cases which involve sordid family disputes also are better left
   to the jury without too explicit instructions. Plato implied and
   Holmes explicitly stated that judges are apt to be naive men. If
   judges seem to comment on the morality of conduct or the extent of
   damages, they may discover that the jurors regard their own knowledge
   as superior to the judges'. At any rate when brother sues brother or
   when spouse sues paramour, the very anonymity of the jury's judgment
   often does more than the most clearly reasoned opinion or charge of an
   identified judge could have done to still the controversy.

   What of the trial judge's role in accident cases? How far should he go
   in requiring available evidence to be produced, in commenting on the
   testimony, and in using special verdicts and like devices to seek to
   keep the jury within the precise bounds laid down by the appellate
   courts?

   There are some who say that the trial judge has not fulfilled his
   moral obligation if he merely states clearly the law regarding
   negligence, causation, contributory fault, and types of recoverable
   damage. In their opinion it is his duty to analyze the evidence and
   demonstrate where the evidence seems strong or thin and where it
   appears reliable or untrustworthy.

   Most federal judges do not make such analyses. They are not deterred
   through laziness, a sentimental regard for the afflatus of the Seventh
   Amendment, or even a fear of reversal. They are mindful that the
   community no longer accepts as completely valid legal principles
   basing liability upon fault. They perceive a general recognition of
   the inevitability of numerous accidents in modern life, which has made
   insurance widely available and widely used. Workmen's compensation
   acts and other social and economic legislation have revealed a trend
   that did not exist when the common-law doctrines of tort were
   formulated. And the judges sense a new climate of public opinion which
   rates security as one of the chief goals of men.

   Trial judges cannot, without violating their oaths, bow directly to
   this altered policy. In instructions of law they must repeat the
   doctrines which judges of superior courts formulated and which only
   they or the legislatures can change. But trial judges are not giving
   "rein to the passional element of our nature" or forswearing
   themselves by following Lord Coke's maxim that "the jurors are
   chancellors." Traditionally juries are the device by which the rigor
   of the law is modified pending the enactment of new statutes.

   Some will say that this abdication is not merely cowardly but ignores
   the "French saying about small reforms being the worst enemies of
   great reforms." To them the proper course would be to apply the
   ancient rules with full rigidity. They anticipate that adverse
   reactions would then lead to a complete resurvey of accident law; to a
   scrutiny of the costs, delays, and burdens of present litigation; to a
   comparative study of what injured persons actually get in cash as a
   result of lawsuits, settlements out of court, administrative
   compensation proceedings, and other types of insurance plans; and
   ultimately to a new codification. To this, one answer is that in
   Anglo-American legal history reform has rarely come as a result of
   prompt, comprehensive investigation and legislation. The usual course
   has been by resort to fictions, to compromises with logic, to juries.
   Only at the last stages are outright changes in the formal rules
   announced by the legislators or the appellate judges. This is
   consistent with Burke's principle that "reform is impracticable in the
   sense of an abrupt reconstruction of society, and can only be
   understood as the gradual modification of a complex structure."

   2.

   I am not at all certain that it would be a desirable reform in those
   personal injury controversies, known as tort cases, to substitute
   trial by judges for trial by juries. Just such a substitution has been
   made in the Federal Tort Claims Act. And experience under that statute
   does not prove that in this type of case a single professional is so
   satisfactory a tribunal as a group of laymen of mixed backgrounds. In
   estimating how a reasonable and prudent man would act, judges' court
   experience counts for no more than juries' out-of-court experience. In
   determining the credibility of the type of witness that appears in
   accident cases an expert tribunal is somewhat too ready to see a
   familiar pattern. Shrewdness founded on skepticism and sophistication
   has its place in scrutinizing the stories of witnesses. But there is a
   danger that the professional trier of fact will expect people of
   varied callings and cultures to reach levels of observation and
   narration which would not be expected by men of the witness's own
   background. Moreover, when it comes to a calculation of damages under
   the flexible rules of tort law the estimate of what loss the plaintiff
   suffered can best be made by men who know different standards of
   working and living in our society. Indeed, I have heard federal judges
   confess that in a Federal Tort Claims case they try to make their
   judgments correspond with what they believe a jury would do in a
   private case. And many judges would prefer to have such cases tried by
   juries.

   In commercial eases and those arising under regulatory statutes there
   is reason to hold a jury by a much tighter rein than in tort cases.
   This is not because the rules of law are more consonant with
   prevailing notions of justice. In these controversies judges have a
   specialized knowledge. Parties have usually acted with specific
   reference to their legal rights. Departures from the declared standard
   would undermine the legislative declaration and would be less likely
   to produce reform than confusion and further litigation.

   An extreme example will serve as an illustration. In a tax case tried
   before a jury at the suit of one holder of International Match Company
   preference stock, the issue was whether for tax purposes those
   certificates had become worthless in the year 1936. In another
   taxpayer's case the Second Circuit Court of Appeals had Affirmed a
   ruling of the Board of Tax Appeals that similar stock had become
   valueless in the year 1932. Technically this adjudication did not bind
   the jury, though the evidence before it was substantially the same as
   that in the earlier case. To preserve uniformity on a factual tax
   problem of general application I had no hesitation in strongly
   intimating to the jury that they should reach the same result as the
   Second Circuit.

   In sales cases something close to a scientific appraisal of the facts
   is possible; there are strong mercantile interests favoring certainty;
   and future litigation can be reduced by strict adherence to carefully
   prescribed statutory standards. These considerations sometimes warrant
   giving juries written instructions or summaries and often justify the
   use of special verdicts. Either method makes jurors focus precisely on
   the formalities of the contract, the warranties claimed to have been
   broken, the types of damage alleged to have been sustained, and the
   allowable formulae for calculating those damages.

   Indeed, except for tort cases, I find myself in agreement with Judge
   Frank that the trial judge ought to use special verdicts to a much
   larger extent, though it is more difficult than may at first be
   realized to frame questions to the satisfaction of counsel and to the
   comprehension of juries. Once when I used what I thought simple
   questions, a fellow judge, half in jest, accused me of trying to
   promote a disagreement of the jury and thus to force a settlement.

   The arguments supporting special verdicts in commercial or statutory
   cases also support a trial judge in giving in such cases a more
   detailed charge and more specific guidance in estimating the
   testimony. In complicated cases or those in fields where the
   experience of the average juror is much less than that of the average
   judge, there is a substantial risk of a miscarriage of justice unless
   the judge points rather plainly to the "knots" in the evidence and
   suggests how they can be unraveled. The only time I have ever entered
   judgment notwithstanding a verdict was in a private antitrust suit.
   The jury had awarded damages of over one million dollars as a result,
   I believe, of the generality of my instructions.

   So far I have said nothing of federal criminal cases. About 90 per
   cent of all defendants in the federal court plead guilty. In those
   federal cases which come to trial the crime charged frequently
   concerns economic facts; and generally, though not invariably, the
   preliminary investigation by the FBI and other agencies of detection
   has reduced to a small compass the area of doubt. Often the only
   remaining substantive issue of significance is whether the defendant
   acted "knowingly." Indeed the usual federal criminal trial is as apt
   to turn on whether the prosecution has procured its evidence in
   accordance with law and is presenting it fairly, as on whether the
   defendant is guilty as charged. All these factors combine to
   concentrate the judge's attention upon the avoidance of prejudicial
   inquiries, confusion of proof, and inflammatory arguments. Counsel can
   aid the judge to maintain the proper atmosphere by stipulation, by
   refraining from putting doubtful questions until the judge has ruled
   at the bench, and by other cooperative efforts. But if cooperation is
   not forthcoming the judge should hesitate to fill the gap by becoming
   himself a participant in the interrogation and should not indicate his
   view of the evidence. For the criminal trial is as much a ceremony as
   an investigation. Dignity and forbearance are almost the chief
   desiderata.

   3.

   I turn now to the freedom of the trial judge when he sits without a
   jury. In nonjury as in jury cases, a substantial part of the bar
   prefers to have the judge sit patiently while the evidence comes in
   and then at the end of the trial summarize the testimony. This seems
   the sounder practice in the great bulk of trials. But in cases of
   public significance, Edmund Burke admonished us: "It is the duty of
   the Judge to receive every offer of evidence, apparently material,
   suggested to him, though the parties themselves through negligence,
   ignorance, or corrupt collusion, should not bring it forward. A Judge
   is not placed in that high situation merely as a passive instrument of
   parties. He has a duty of his own, independent of them, and that duty
   is to investigate the truth...."

   Let me give some examples of when I believe the judge has a duty to
   elicit facts in addition to those that are offered by the parties. The
   plaintiff, an owner of a multiple dwelling, brought suit for a
   declaratory judgment seeking to have the premises declared a "hotel"
   and thus exempt from the rent regulations of the OPA. Only one of the
   numerous tenants was named as defendant. In the trial the plaintiff
   offered evidence that showed the building was a hotel and not an
   apartment. Because of lack of funds or of forensic skill, the tenant's
   counsel failed to shake the stories of the plaintiff's witnesses or to
   offer adequate testimony to the contrary. Yet if the trial judge had
   called specialists and others familiar with the community and the
   property, the evidence would have demonstrated that in truth the
   building was a mere apartment house. I took no step myself to call
   witnesses or to interrogate those who did testify but, relying
   exclusively on what the parties offered, entered a judgment declaring
   the premises a "hotel" and thus exempt. Since this declaration of
   status became in effect a general rule binding on scores of persons
   not represented in the proceedings, would it not have been sounder if
   the court had taken a larger initiative in seeing that the record
   corresponded with reality?

   A later controversy of even greater public importance posed a similar
   problem. In a case still undecided, the United States sued the United
   Shoe Machinery Corporation for violation of the antitrust laws. Among
   the issues that were presented was the effect of the corporation's
   acts upon its customers and its competitors. The Government in its
   case relied exclusively on the corporation's documents and officers.
   The corporation planned to call some customers, though the method by
   which they were drawn was not disclosed to the court. This seemed an
   inadequate survey. So the court asked the parties to take depositions
   from forty-five customers, selected from a standard directory by
   taking the first fifteen names under the first, eleventh, and
   twenty-first letters of the alphabet; and the court itself called to
   the stand the officers of the principal competitor. In the summons the
   court listed topics appropriate for questioning the officers. The
   actual examination was conducted in turn by the competitor's counsel,
   the Government's counsel, and the defendant's counsel. Both these
   types of testimony give a much clearer understanding of the total
   picture of the industries that will be affected by any decision.

   Another problem in the United Shoe case has been to determine what
   have been the usual methods followed by the defendant in setting
   prices, in supplying services, and in suing competitors. An adequately
   grounded conclusion can hardly be based entirely on the plaintiff's
   selection of a few dramatic incidents and on the defendant's testimony
   of the general attitude of its officers. The critical point in
   determining liability and the form of relief may turn on what has been
   the typical pattern of the defendant's conduct and the typical effect
   of that conduct on outsiders. Here the judge can perform a useful
   function if he, through pre-trial conferences or at a later stage of
   the litigation when he is more aware of its dimensions, provides for
   appropriate samplings of the conduct and the effects. If the judge is
   fortunate, the parties may agree on the sampling. But where they do
   not, it seems to me to be the judge's responsibility first to elicit
   from witnesses on the stand the criteria necessary to determine what
   are fair samples and then to direct the parties to prepare such
   samples for examination and cross-examination. Sampling will make the
   record not merely more informative but shorter.

   4.

   The question as to what has been the custom of the market and what
   would be the consequence of a judicial decree altering those practices
   arises not only in antitrust cases but also when the judge is faced
   with the problem of determining either the appropriate standard of
   fair competition in trademarks or the appropriate standard for
   fiduciaries. Usually, to be sure, diligent counsel offer in evidence
   enough relevant material. But where this has not been done, there have
   been times when a judge has tended to reach his result partly on the
   basis of general information and partly on the basis of his studies in
   a library.

   This tendency of a court to inform itself has increased in recent
   years following the lead of the Supreme Court of the United States.
   Not merely in constitutional controversies and in statutory
   interpretation but also in formulation of judge-made rules of law, the
   justices have resorted, in footnotes and elsewhere, to references
   drawn from legislative hearings, studies by executive departments, and
   scholarly monographs. Such resort is sometimes defended as an
   extension of Mr. Brandeis's technique in Muller v. Oregon. In Muller's
   case, however, Mr. Brandeis's object was to demonstrate that there was
   a body of informed public opinion which supported the reasonableness
   of the legislative rule of law. But in the cases of which I am
   speaking these extra judicial studies are drawn upon to determine what
   would be a reasonable judicial rule of law. Thus the focus of the
   inquiry becomes not what judgment is permissible, but what judgment is
   sound. And here it seems to me that the judge, before deriving
   conclusions from any such extrajudicial document or information should
   lay it before the parties for their criticism.

   How this criticism should be offered is itself a problem not free from
   difficulty. In some situations the better course may be to submit the
   material for examination, cross-examination, and rebuttal evidence. In
   others, where expert criticism has primarily an argumentative
   character, it can be received better from the counsel table and from
   briefs than from the witness box. The important point is that, before
   a judge acts upon a consideration of any kind, he ought to give the
   parties a chance to meet it. This opportunity is owed as a matter of
   fairness and also to prevent egregious error. As Professor Lon Fuller
   observed, the "moral force of a judgment is at maximum if a judge
   decides solely on the basis of arguments presented to him. Because if
   he goes beyond these he will lack guidance and may not understand
   interests that are affected by a decision outside the frame work."

   The duty of the judge to act only on the basis of material debated in
   pubic in no sense implies that the judge's findings should be in the
   precise terms offered by counsel. Nor does Rule 52(a) of the Federal
   Rules of Civil Procedure require the judge always to recite all
   relevant evidence and to rely for persuasive effect exclusively upon
   mass and orderly arrangement. Yet in corporate cases or other
   litigation where the issues turn on documentary analysis and precise
   analysis of business details, and where appeal is almost certain to be
   taken, the trial judge may perform the greatest service by acting
   almost as a master summarizing evidence for a higher tribunal.

   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.

   5.

   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.
     _________________________________________________________________


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