Academic journal article Harvard Law Review

Affirmative Duties and Judges' Duties: United States V. Stockberger

Academic journal article Harvard Law Review

Affirmative Duties and Judges' Duties: United States V. Stockberger

Article excerpt

After twenty-four years of judicial experience, Judge Richard Posner contrasted the "aggressive judge" with the "modest judge" in his 2005 Foreword in the Harvard Law Review. (1) When Professor Posner became Judge Posner in 1981, anyone familiar with his ambitious, trailblazing academic achievements would have expected the bold professor to become an aggressive judge. One might have imagined the Seventh Circuit's slip opinions being transformed into the Journal of Legal Studies, as he would bring an economic perspective to every reach of the law. Instead, Judge Posner brought measured judicial restraint to many of his cases. One recent example is Stockberger v. United States, (2) in which Judge Posner had an opportunity to put his academic theories into practice. Instead, he heeded his own call for judicial restraint by not straying far from state precedent. In this brief tribute to Judge Posner, I commend this modesty but suggest that, in similar cases, he might reconcile his desire for restraint with his academic theories by engaging in bolder modesty and more aggressive deference. Specifically, he might establish supermajority voting rules in diversity cases that ask federal judges to predict the direction of state law.

On March 24, 1999, Maurice Stockberger, a diabetic employed at the federal prison in Terre Haute, Indiana, announced to his colleagues that he was not feeling well. A colleague described him as "aggravated and angry, and adamant about going home." (3) His colleagues had witnessed several of his hypoglycemic episodes before and knew that he would become "hostile, suspicious, unresponsive, agitated," and in denial of his medical problem. (4) Many of these colleagues were medically trained and recognized that Stockberger was experiencing another of his hypoglycemic episodes that day. (5)

A physician's assistant at the prison, who had observed Stockberger's past episodes and found him on that day "immobile" and "non-responsive," provided him with Ensure, a drink that would correct his blood sugar deficit. (6) After lunch and the drink, Stockberger said he felt "a lot better," and the physician's assistant and other colleagues allowed him to drive home. (7) They might have taken strong measures, such as taking his keys, committing him to the infirmary, or otherwise preventing him from leaving the prison. Or they simply might have offered him a ride or called his wife to let her know of the situation. These colleagues had the expertise and experience to understand that the risk in this situation was similar to letting a drunk colleague drive home, and they had a moral duty to prevent it or at least to warn someone. Instead, they did nothing. Stockberger drove home erratically and fatally crashed into a tree. (8)

These facts present a difficult legal case because the common law imposes few affirmative or positive duties, such as the duty to rescue. Tort law penalizes the active creation of risks, but it generally does not make one liable for passively allowing harms to befall others. Such a broad web of duties would be difficult to adjudicate manageably. Furthermore, opponents of affirmative duties argue that human altruism and the reward of social recognition already produce rescues in most cases. Critics of affirmative duties even suggest that legal duties to rescue actually might deter some people from attempting to rescue, or from putting themselves into position for a potential rescue, out of a fear of liability. (9) Thus, in such cases, tort law privileges individual autonomy and judicial economy above social welfare. Nearly thirty years ago, Posner, then a law professor, offered a solution to the vexing question of affirmative duties:

  Suppose that if all of the members of society could somehow be
  assembled they would agree unanimously that, as a reasonable measure
  of mutual protection, anyone who can warn or rescue someone in
  distress at negligible cost to himself (in time, danger, or whatever)
  should be required to do so. … 
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