MY FAVOURITE CASE/Tom O'Malley: What is your favourite case?The case is McLaughlin v Venore Transportation Company (1965). It happened in Massachusetts in 1965 after Chief Judge Wyzanski of the federal district court published a book entitled Whereas: A Judge's Premises. By all accounts, the book was moderately interesting for its reflections on life and law but it was not, shall we say, one of the great legal classics.
Hiller Zobel, a lawyer who regularly appeared before the judge in question, wrote a glowing review of the book and took the opportunity to compare the author with some of the greatest lawyers in Western history. In his view, Judge Wyzanski was on a par with Lord Mansfield and other legal luminaries from the past. He went even further and compared Wyzanski to Toscanini no less, saying: “He runs his motion sessions the way Toscanini rehearsed the NBC Symphony.”
Shortly after the review appeared in print, Zobel found himself before Wyzanski, but his opponent in the case, one Nathan Greenberg, brought a motion asking the judge to disqualify himself. He argued that the judge might be biased in Zobel’s favour because of the favourable review.
Wyzanski issued a written judgement filled with irony in which he implicitly thanked Greenberg for making the application which would have the effect of drawing attention to the book. In fact, he hinted, Greenberg’s action was all the more generous given how often he, the judge, had had to reprimand him for engaging in improper practices in court. And, he seemed to recall, those reprimands had not always been gracefully received. He then refused to disqualify himself, saying that neither a favourable or hostile review would diminish his commitment to impartiality. “Neither sugar nor salt,” he wrote, “will easily spoil my taste for the essence of justice.”
Then, in a final coup de grâce, he appended a copy of the review to his judgement which appeared in the federal law reports. It has therefore been available ever since for perusal and enjoyment all over the world, and is now widely available on the internet. As Wyzanski had remarked in his book: “Humility is the noblest fruit of introspection. It establishes defences against pride.”
To the best of my knowledge, the reviewer was the same Hiller Zobel who later became a state judge in Massachusetts and achieved worldwide fame for presiding over the Louise Woodward trial in 1997. He took the unusual step of overturning the jury’s murder verdict, replacing it with one of manslaughter and sentencing Woodward to the time she had already served.
His decision was later upheld by a majority of the Massachusetts Supreme Court. Toscanini would have been proud of him.
Why is this your favourite case?
I am not saying it is my favourite case of all time, but it is certainly among a handful in that category. Although not well known, it illustrates a recurring problem which arises when judges are asked to disqualify or recuse themselves from hearing a case on the grounds that they may have some interest in the outcome or because they have expressed strong views on how such cases should be decided.
The so-called rule against bias is based on the principle that justice should not only be done but be seen to be done. The test is whether a reasonable observer, acquainted with the relevant facts, might apprehend that the judge might be biased. Most of the leading cases involve judges, but the principle applies equally to other decision-makers within the public sector. Thus, a person should not sit on an interview board or a disciplinary committee if there is any reason to believe that they have a preconceived preference as to the outcome.
Most judges tend to err on the side of caution by stepping aside when asked to do so, and sometimes indeed without being asked. On the other hand, they must be careful not to stand aside too readily, as otherwise parties and their lawyers could engage in a kind of forum shopping until such time as they found the judge they wanted.
Another reason why this judgment is noteworthy is that it is so well crafted. The extent to which some judgments prove influential often has as much to do with style as with substance. Judges like Oliver Wendell Holmes in the United States, and Lord Denning and vice-chancellor Megarry in England had the knack of the memorable phrase. Therefore, even where their decisions might be logically questionable, the language and phraseology in which those decisions are couched can assure them a certain immortality.
How relevant is this case to Ireland?
An exactly similar situation is unlikely to arise in Ireland because few judges will have written books. But it could arise if a lawyer who had strongly criticised or praised a written judgment later appeared before the judge who had produced it. This would not ordinarily require the judge to stand aside unless there was a very strong argument made, on objective grounds, that he or she should do so.
- In conversation with Caroline Madden
Tom O’Malley BL is a senior lecturer in law at NUI Galway and visiting professor of criminology at Leiden University in The Netherlands