J.C. Hutcheson - Judgment Intuitive - The Function of the Hunch in Judicial Decision (Cornell Law Review, 1929)

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Cornell Law Review, 1929
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  Cornell Law Review   V*' 14I-- 3  April 1929  A$c' 2  Judgment Intuitive Te Function of the Hunch in Judicial Decision  Joseph C. Hutcheson Jr. F*''* #$- ad add$$*a' *&- a:#5+://-c#*'a-#$+.'a.c*''.d/c'Pa *! #La C**- $- A$c' $- b* # * * !* ! ad *+ acc-- b # J*a'- a Sc#*'a-#$+@C*'' La: A D$ $a' R+*-$*. I #a- b acc+d !*$c'-$* $ C*'' La R0$ b a a#*$d ad$$-a* *! Sc#*'a-#$+@C*'' La: A D$ $a' R+*-$*. F* * $!*a$*, +'a-c*ac %+8@c*''.d. Rc*dd C$a$*  J*-+# C. Hc#-* J.,  Judgment Intuitive Te Function of the Hunch in Judicial Decision  , 14C*''L.R0. 274 (1929) A0a$'ab' a: #5+://-c#*'a-#$+.'a.c*''.d/c'/0*'14/$--3/2  TH JUDGIENT INTUITIVE: TH FUNCTION OF TUE HUNCH ', IN JUDICIAL DECISION JOSEPH C. HUTCHESON JR. Many years ago, at the conclusion of a particularly difficult case both in point of law and of fact, tried to a court without a jury, the judge, a man of great learning and ability, announced from the Bench that since the narrow and prejudiced modern view of the obligations of a judge in the decision of causes prevented his resort to the judg-ment aleatory by the use of his little, small dice he would take the case under advisement, and, brooding over it wait for his hunch.To me, a young, indeed a very young lawyer, picked, while yet the dew was on me and I had just begun to sprout, from the classic gardens of a University, where I had been trained to regard the lawas a system of rules and precedents, of categories and concepts, and the judge had been spoken of as an administrator, austere, remote,  his intellect a cold logic engine, who, in that ratified atmosphere in which he lived coldly and logically determined the relation of the facts of a particular case to some of these established precedents, it ap- peared that the judge was making a jest, and a very poor one, at that. I had been trained to expect inexactitude from juries, but from the judge quite the reverse. I exalted in the law its tendency to for- mulize. I had . slot machine mind. I searched out categories and concepts and, having found them, worshiped them. I paid homage to the law's supposed logical rigidity and exactitude. A logomachist, I believed in and practiced logomancy. I felt a sense of real pain when some legal concept in which I had put my faith as permanent, constructive and all-embracing opened like a broken net, allowing my fish to fall back into the legal sea. Paraphrasing Huxley, I believed that the great tragedy of the law was the slaying of a beautiful concept by an ugly fact. Always I looked for perfect formulas, fact proof, concepts so general, so flexible that in their terms the jural relations of mankind could be stated, and I rejected most vigorously the suggestion that there was, or should be, any- thing fortuitous or by chance in the law. Like Jurgen I had been to the Master Philologist and with words he had conquered me. I had studied the law in fragments and segments, in sections and 'compartments, and in my mind each compartment was nicely and logically arranged so that every case presented to me only the *United States District Judge, Southern District of Texas. 1  A strong, intuitive impression that something is about to happen. WEB- STER INTERNATIONAL DICTIONARY. I  THE JU GMENT INTUITIVE problem of arranging and re-arranging its facts until I could slip itinto the compartment to which it belonged. The relation of land- lord and tenant, of principal and agent, of bailor and bailee, of masterand servant, these and a hundred others controlled my thinking and directed its processes.Perceiving the law as a thing fullgrown, I believed that all of its processes were embraced in established categories, and I rejected most vigorously the suggestion that it still had life and growth, and if anyone had suggested that the judge had a right to feel, or hunch out a new category into which to place relations under his investi-gation, I should have repudiated the suggestion as unscientific and unsound, while as to the judge who dared to do it, I should have cried Away with him Away with him I was too much influenced by the codifiers, by John Austin and Bentham, and by their passion for exactitude. I knew that in times past the law had grown through judicial action; that rights and processes had been invented by the judges, and that under their creative hand new remedies and new rights had flowered. I knew that judges are the depositories of the laws like the oracles, who must decide in all cases of doubt and are bound by an oath to decide accordingto the law of the land, 2 but I believed that creation and evolution were at an end, that in modem law only deduction had place, and that the judges must decide through being long personal- ly accustomed to and acquainted with the judicial decisions of their predecessors. 3 I recognized, of course, that in the preparation of the facts of a case there was room for intuition, for feeling; that there was a sixth sense which must be employed in searching out the evidence for clues, in order to assemble facts and more facts, but all of this before the evidence was in. I regarded the solution of the problem when the evidence was all in as a matter for determination by the judge by pure reason and reflection, and while I knew that juries might anddid arrive at their verdicts by feeling, I repudiated as impossible the idea that good judges did the same. I knew, of course, that some judges did follow hunches, '  - guesses I indignantly called them. I knew my Rabelais, and had laughed over without catching the true philosophy of old Judge Bridlegoose's trial, and roughly, in my youthful, scornful way, I recognized four kinds of judgments; first the cogitative, of and by reflection and logomancy; second, aleatory, of and by the dice;  T BL COMM .i6 9. 3 hid  CORNELL L W QU RTERLY thid intuitive, of and by feeling or hunching; and fourth, asinine, of and by an ass; and in that same youthful, scornful way I regarded the last three as only variants of each other, the results of processes all alien to good judges. As I grew older, however, and knew and understood better the judge to whom I have in this opening referred; as I associated morewith real lawyers, whose intuitive faculties were developed and made acute by the use of a trained and cultivated imagination; as I read more after and came more under the spell of those great lawyers and judges whose thesis is that modification is the life of the law,  4 I came to see that as long as the matter to be considered is de- bated in artificial terms, there is danger of being led by a technicaldefinition to apply a certain name and then to deduce consequenceswhich have no relation to the grounds on which the name was ap- plied; 5 that the process of inclusion and exclusion so often applied indeveloping a rule, cannot end with its first enunciation. The rule announced must be deemed tentative. For the many and varyingfacts to which it will be applied cannot be foreseen. 6 I came to see that every opinion tends to become a law.  7 That  regulations, the wisdom, necessity and validity of which as applied to, existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, would probablyhave been rejected as arbitrary and oppressive and that in a changing world it is impossible that it should be otherwise. I came to see that resort to first principles is, in the last analysis, the only safe way to a solution of litigated matters. 9 I came to see that instinct in the very nature of law itself is change, adaptation, conformity, and that the instrument for all of this change, this adaptation, this conformity, for the making and the nurturing of the law as a thing of life, is the power of the brooding mind, which in its very brooding makes, creates and changes jural relations, establishes philosophy, and drawing away from the out- worn past, here a little, there a little, line upon line, precept upon 4 CARTER, LAW, ITS ORIGIN, GROWTH AND FUNCTION 1907). Modification implies growth. It is the life of the law. Washington v. Dawson, 264 U. S. 219, 236, Sup. Ct. 3 2 (1924), Brandeis, J., dissenting. 5 Guy v. Donald, 2 3 U. S. 399, 406, 27 Sup. Ct. 63 1926 . 'Washington v. Dawson, supr note 4. 7 Lochner v. New York, 198 U. S. 45, 76, 25 Sup. Ct. 5 9 1905 . 8Euclid Valley v. Ambler, 272 U. S. 365, 47 Sup. Ct. ii (1926). 9 01d Colony Trust Co-v. Sugarland Industries, 296 Fed. 129, 138 (S. D. Tex. 1924).
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