The path of Law

Your reading assignment for this week’s topic, namely, the American legal pragmatist Oliver W. Holmes, Jr.’s critique of John Austin’s legal positivism includes
[1] Oliver W. Holmes, Jr., “The Path of the Law,” Harvard Law Rev., Vol. 10, No. 8 (Mar. 25, 1897).pdf
and
[2] [caselaw] Tarasoff v. Regents of U. California, 17 Cal. 3d 425; 551 P.2d 334 (Cal. Supr. Ct., 1976).pdf
In this Discussion Forum for Week Three (Feb 14—21) our purpose will be to assess how well the California Supreme applied certain fundamental principles of the jurisprudence of classical “legal pragmatism” or “pragmatic realism” in their controversial 1976 decision Tarasoff v. Regents of U. California, 17 Cal. 3d 425; 551 P.2d 334 (Cal. Supr. Ct., 1976). In that decision, Justice Stanley Mosk, Associate Justice of the California Supreme Court for 37 years (1964–2001), wrote separately, filing an opinion in partial concurrence but in partial dissent to the majority opinion written by Justice Mathew O. Tobriner. There was also a dissenting opinion by Justice William P. Clark. Both of these opinions are included on the last page of our reading assignment copy of the opinion, at the following internal link:
[caselaw] Tarasoff v. Regents of U. California, 17 Cal. 3d 425; 551 P.2d 334 (Cal. Supr. Ct., 1976).pdf

 Your task in this week’s Discussion Forum is first, to designate in your contributing post(s) to this Discussion Forum WHICH ONE of the three opinions in this highly controversial decision, (1) the majority opinion by Judge Tobriner, or (2) the partially concurring and partially dissenting opinion of Judge Mosk, or (3) the dissenting opinion of Judge Clark you believe is better reasoned, and then of course to defend your preference clearly with reasoned explanations.
 Justice Mosk’s separately filed opinion concurs with the majority’s pragmatist or “pragmatic realist” expansion of the common law rule regarding a citizen’s duty to others to control the conduct of another where the defendant stands in some special relationship to the person whose conduct needs to be controlled. Mosk concurred in the majority opinion that the duty of care should be recognized as including the duty to warn those persons who the defendant may reasonably be found to have foreseen were in a position to be endangered by such conduct, applying it to cases therefore in which the defendant stands in some special relationship to either (1) the person whose conduct needs to be controlled, even if the defendant is not alleged to stand in any special relationship with persons foreseeably endangered by such conduct, as judged by the foresight of a reasonable person, or otherwise (2) in a special relationship to the foreseeable victim of that conduct, the Court thereby adopting a recommendation of the academic treatise Restatement Second of Torts to support its recognition of a new cause of action not previously recognized by the Court.
 In a way we’re all pragmatists here. There is room for dissent of course, in difficult cases. In such cases, a judge may adopt a perhaps modernized version of a more “positivist” stance, a position which might, if not be considered “pragmatically realist,” might otherwise be regarded as a cautious exercise of appropriate “judicial restraint.” The opinion of Justice William P. Clark, writing in full dissent to the majority opinion in our Tarasoff matter, stated that “The issue whether effective treatment for the mentally ill should be sacrificed to a system of warnings is, in my opinion, properly one for the Legislature, and we are bound by its judgment. Moreover, even in the absence of clear legislative direction, we must reach the same conclusion because imposing the majority's new duty is certain to result in a net increase in violence.”
 You will have to read the reading assignment texts before embarking on this, our Discussion Forum, which launches with this opening post. Again, these are:

[1] Oliver W. Holmes, Jr., “The Path of the Law,” Harvard Law Rev., Vol. 10, No. 8 (Mar. 25, 1897).pdf
and
[2] [caselaw] Tarasoff v. Regents of U. California, 17 Cal. 3d 425; 551 P.2d 334 (Cal. Supr. Ct., 1976).pdf
Allow me to introduce our task with some preliminary observations on the subject.
“Pragmatism” generally, in philosophy, refers to a certain method of logical and semantic analysis created by a group of young Harvard scholars in the years after the Civil War, principally Charles Sanders Peirce (a Harvard mathematics professor’s son), his close friend William James (a recent graduate of the Harvard Medical School and Biology Department professor, brother of the great English novelist Henry James, Jr.), and William James’ friend since childhood, Oliver Wendell Holmes, Jr. (a Civil War veteran and son of the distinguished physician and poet, later a professor at Harvard Law School, then Chief Judge of the Supreme Judicial Court of Massachusetts, and late Associate Judge of the U.S. Supreme Court).
In 1879 Charles Sanders Peirce introduced the “pragmatist’s maxim,” in a journal in France, as “Consider what practical effects we think can be produced by the object of our conception. The conception of the totality of these effects is the complete conception of the object.” (“Considérer quels sont les effets pratiques que nous pensons pouvoir être produits par l’objet de notre conception. La conception de tous ces effets est la conception complète de l’objet.” [Revue Philosophique, Volume VII, January 1879]) For example, as applied in the jurisprudence of Oliver Wendell Holmes, Jr., in particular in his famous 1897 Harvard Law Review lecture “The Path of the Law,” when we consider the substance of some law or statute, the complete conception of that law or statute consists in our consideration of what practical effects we think can be produced by that law. Thus, part of the complete concept of a statute that forbids bank robbing would consist in our consideration of some the statute’s particular practical effects, such as the jailing of apprehended bank robbers.
In “The Path of the Law,” beginning in the second paragraph, Holmes says, “But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right. The number of our predictions when generalized and reduced to a system is not unmanageably large. They present themselves as a finite body of dogma which may be mastered within a reasonable time. It is a great mistake to be frightened by the ever-increasing number of reports. The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view. We could reconstruct the corpus from them if all that went before were burned. The use of the earlier reports is mainly historical, a use about which I shall have something to say before I have finished. I wish, if I can, to lay down some first principles for the study of this body of dogma or systematized prediction which we call the law, for men who want to use it as the instrument of their business to enable them to prophesy—in their turn, and, as bearing upon the study, I wish to point out an ideal which as yet our law has not attained.”
Holmes was an unrelenting critic of the rising “legal positivism” of John Austin, professor of law at the London University in the early 1830’s, Holmes disputing, in particular, Austin’s conception that (1) law is a “command” of higher social authorities to subordinates, as opposed to variously accepted standards of conventional morality; (2) judicial authority consists properly in strict adherence to the express formulation of given statutes, regulations, and rules as announced in judicial precedent, as opposed to the implied intent of the drafters of legally binding authority, and (3) judicial responsibility ought not to be in the business of weighing prevailing trends of public morality so as vainly to attempt some reconstruction of the law “as it should be,” rather than plainly “how it is.”
Holmes, in “The Path of the Law,” argues instead, that (1) law is but a predictive instrument anticipating how the fortunes of persons shall be made subject to the “public force” when they undertake certain risks of voluntary conduct; that (2) scholarly and trained lawyers and judges are entrusted to employ these predictive instruments in the professional business of the courts; and (3) it is the duty of good lawyers and judges habitually to consider ever more definitely and explicitly the social advantage on which the rules they lay down ought to be justified, so as to arrive at a determination of the law as it ought to be, as it was meant to be, not as it might have been constructed in the past.
For purposes of this week’s Discussion Forum, you will be asked (in the questions presented at the end of this opening post), to consider and assess how well the California Supreme Court satisfied the above principles of Holmes’ ideals of the jurisprudence of classical “legal pragmatism” or “pragmatic realism” in its controversial 1976 decision Tarasoff v. Regents of U. California, 17 Cal. 3d 425; 551 P.2d 334 (Cal. Supr. Ct., 1976).
I will here, therefore, briefly review certain pivotal aspects of that judicial opinion.
The above-named matter of Tarasoff, which you must study before embarking on our Discussion Forum for Week Three (Feb 14—21) consists in a civil action in negligence sounding in wrongful death, brought by bereaved family members of the family’s deceased daughter Tatiana, against the Regents of the U. California, alleging that their daughter was the foreseeable victim of a dangerous psychotic patient being treated by campus psychiatric staff the public university, Prosenjit Poddar, who had been convicted of the murder in a prior proceeding.
The Superior Court sustained the college’s exceptions to all stated causes of action, dismissing the action as of nonsuit. The college asserted in their demurrers that they owed no duty of reasonable care to Tatiana and that they were otherwise immune from liability under the California Tort Claims Act of 1963 (Gov. Code, § 810 ff.). Although on review the California Supreme Court found that the trial court was not in error in dismissing the case, it granted the plaintiffs the right to amend its pleadings, ruling that:
“…[W]hen the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim. …
“Although, as we have stated above, under the common law, as a general rule, one person owed no duty to control the conduct of another [cites], nor to warn those endangered by such conduct (Rest.2d Torts, supra, § 314, com. c.; Prosser, Law of Torts (4th ed. 1971) § 56, p. 341), the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct (see Rest.2d Torts, supra, § § 315-320). Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either ‘(a) a special relation … between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation … between the actor and the other which gives to the other a right of protection.” (see pages 5-6)
Thus, relying on the academic treatise Restatement Second of Torts to support its recognition of a new cause of action not previously recognized by the Court, the Court concluded:
“Although plaintiffs’ pleadings assert no special relation between Tatiana and defendant therapists, they establish as between Poddar and defendant therapists the special relation that arises between a patient and his doctor or psychotherapist. Such a relationship may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons.” (page 6)
Though the plaintiff’s attorneys had cited legal precedent supporting their general allegation that the defendant college failed “to Warn On a Dangerous Patient,” the precedent was from outside the jurisdiction. Additionally, though another court could conceivably have implied such a duty from California Evidence Code section 1024, in which the legislature had created a specific and limited exception to the psychotherapist-patient privilege of confidentiality: “There is no privilege . . . if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger” (see page 10), the Court chose instead to “find” in the emergent public policy implicit in such statutes and regulations, that is to discover and announce the emergent public policy as a modification of the “common law” rule itself.
I have suggested that the above aspects show the influence of Holmes’ jurisprudence of “legal pragmatism” and “pragmatic realism,” in opposition to the prevailing trend in Holmes’ era of John Austin’s “legal positivism.” Remember to keep in mind how Holmes had argued, in “The Path of the Law,” that (1) law is not a “command” of social superiors, but rather a predictive instrument anticipating how the fortunes of persons shall be made subject to the “public force” when they undertake certain risks of voluntary conduct; that (2) scholarly and trained lawyers and judges are entrusted to employ these predictive instruments in the professional business of the courts; and (3) it is the duty of good lawyers and judges habitually to consider ever more definitely and explicitly the social advantage on which the rules they lay down ought to be justified, so as to arrive at a determination of the law as it ought to be, as it was meant to be, not as it might have been constructed in the past.
Justice Mosk’s separately filed opinion concurs with the majority’s pragmatist or “pragmatic realist” expansion of the common law rule regarding a citizen’s duty to others to control the conduct of another where the defendant stands in some special relationship to the person whose conduct needs to be controlled. Mosk concurred in the majority opinion that the duty of care should be recognized as including the duty to warn those persons who the defendant may reasonably be found to have foreseen were in a position to be endangered by such conduct, applying it to cases therefore in which the defendant stands in some special relationship to either (1) the person whose conduct needs to be controlled, even if the defendant is not alleged to stand in any special relationship with persons foreseeably endangered by such conduct, as judged by the foresight of a reasonable person, or otherwise (2) in a special relationship to the foreseeable victim of that conduct, the Court thereby adopting a recommendation of the academic treatise Restatement Second of Torts to support its recognition of a new cause of action not previously recognized by the Court.
Justice Mosk, once Attorney General of the state of California, did not believe, however, that psychiatrists could predict particular acts of violence on the part of their patients at all. Mosk therefore, writing in partial dissent to the majority opinion, stated “I would restructure the rule designed by the majority to eliminate all reference to conformity to standards of the profession in predicting violence. If a psychiatrist does in fact predict violence, then a duty to warn arises. The majority’s expansion of that rule will take us from the world of reality into the wonderland of clairvoyance.”
The dissenting opinion of Justice Clark, on the other hand, adopted a perhaps modernized version of a more “positivist” stance, a position which might, if not be considered “pragmatically realist,” might otherwise be regarded as a cautious exercise of appropriate “judicial restraint.” Clark, therefore, writing in full dissent to the majority opinion, stated that “The issue whether effective treatment for the mentally ill should be sacrificed to a system of warnings is, in my opinion, properly one for the Legislature, and we are bound by its judgment. Moreover, even in the absence of clear legislative direction, we must reach the same conclusion because imposing the majority’s new duty is certain to result in a net increase in violence.”
Again, your task in this week’s Discussion Forum is first, to designate in your contributing post(s) to this Discussion Forum WHICH ONE of the three opinions in this highly controversial decision, (1) the majority opinion by Judge Tobriner, or (2) the partially concurring and partially dissenting opinion of Judge Mosk, or (3) the dissenting opinion of Judge Clark you believe is better reasoned, and then of course to defend your preference clearly with reasoned explanations.
State the grounds (the evidence and reasons) for holding your position CLEARLY AND CAREFULLY. You must answer both the general and specific questions I have presented in this opening post.