(Via the Indiana Law Blog). Mike Smith, of the Associated Press, has an article entitled Tragedies, single incidents often lead to laws. Smith points to a guy thrown from a mechanical bull turning into regulation on mechanical bull rids; a tornado in Evansville resulting in regulation on installers of manufactured homes; and the case of Michael Vick resulting in lawmakers planning to propose dogfighting legislation.
A “ripped from the headlines” approach to legislating has always annoyed me. Legislation is supposed to be a code of laws that will govern society’s behavior for decades or centuries. Times change, of course, and tragic incidents will, at times, highlight an aspect of society that has changed and which needs regulating. Dog fighting is not one of these new developments. Neither are tornadoes.
Rep. Moses hits the nail on the head with his explanation:
“But sometimes people expect their legislators to do something, and the only thing legislators can do is try to get a law passed. There may be sufficient legislation already, but it’s not unusual for legislators to jump up and want to do more.”
When the only tool you have is a hammer, the whole world looks like nails.
I haven’t been able to track down the origins of the phrase, so I’ll just say that there is an old legal truism that “hard cases make bad law.” The idea is that it’s a bad idea to extrapolate a law of general applicability from one or a few sets of unfortunate circumstances.
I often think about what my second-grade teacher said to me and my parents and think: Gee, today I could have owned that school! But then I remember that my parents taught me right from wrong; especially not to live with a “victim” mentality. If you think about it, each of us runs into situations where we are hurt unfairly-either physically or mentally. Most of us don’t have lawyers on speed-dial! We work it out; by talking to the manager or taking other courses that lead to resolution. I only use a lawyer as a last resort; and only then to get FAIR resolution to a situation.
I’m pretty sure there was a baby in this bathwater when we started.
The examples seem ambiguous at best (Smith isn’t exactly arguing your point; we might add that the buzz around a topic frequently makes for bad journalism, but that it’s avoided here). One would have to be a stark raving Randian to suggest that requiring manufacturers to do something is of itself a bad result. Your average fairgoer might be expected to anticipate injury from mechanical bull-riding, but not a lack of state inspection or liability insurance. That’s an unlettered take based on a sentence or two’s worth of description, and maybe those laws are less than sound due to being written while the blood was up, but then maybe they address oversights in the law or a general lack of understanding made manifest by accident or disaster, or even celebrity misadventure.
Two things: we might consider just how poor are a lot of laws which are written with long reflection, and, while we’re at it, the fact that we have one political party which seems to believe that the courts should be prevented from settling questions of liability, thereby leaving the legislature as our only recourse.
The original quote “hard cases, it is said, make bad law” is attributed to John Campbell Argyll (early 18th century). The phrase was adopted, and slightly modified, by Justice Oliver Wendell Holmes “Great cases, like hard cases, make bad law.” Most mistakenly assume that Holmes coined the entire phrase.