Uncaring Justice: Why Jacque v Uncaring Justice: Why Jacque v. Steenber . Steenberg Homes W g Homes Was Wrongly Decided

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Journal of Catholic Legal Studies


On February 15, 1994, Steenberg Homes ("Steenberg") delivered a mobile home to a neighbor of Lois and Harvey Jacque.' The Jacques were an elderly retired couple who owned about 170 acres in a town in Wisconsin. Their neighbor had bought the home with delivery included. Steenberg asked the Jacques if it could deliver the home to the neighbor across the Jacques' property but the Jacques repeatedly refused. On the day of delivery, the private road to the neighbor's house was "covered in up to seven feet of snow and contained a sharp curve which would require sets of 'rollers' to be used when maneuvering the home around the curve". So Steenberg decided to plow a path across the Jacques' snow-covered field in order to deliver the home to the neighbor despite the Jacques' refusal to give it permission. The Jacques successfully sued Steenberg for trespass, and the jury awarded them $1 in nominal damages because the trespass did not cause any actual harm to the premises.' What is surprising is that the jury also awarded $100,000 to the Jacques in punitive damages and that this award was upheld by the Wisconsin Supreme Court.' The Wisconsin Supreme Court essentially protected the Jacques' right to exclude Steenberg from their property, regardless of the fact that Steenberg was in a difficult position. If the need had been to save a life or the serious loss of property, and there was no other way to save it, Steenberg would have been able to claim necessity and justify its action. But here, where the loss was not life-threatening, the court took an opposite position. It found no justification for Steenberg's action and even condemned it as a serious infraction of the law protecting property. The court did not consider it important that no physical harm had been done to the Jacques' property or that the Jacques had been uncaring in refusing to grant permission for the temporary use of their land. Instead, the court felt that Steenberg's behavior needed a deterrent greater than the judgment of liability and so permitted the jury award of $100,000 in punitive damages to stand. What was the court protecting? Many commentators see the Jacque case as protecting human flourishing. Gregory Alexander makes one of the stronger cases to support this rationale for the $100,000 punitive damage award. His concept of human flourishing focuses on enabling a person to live freely, and in many of his examples from legal cases, he successfully shows how the law promotes the capabilities of a person to live freely by either derogating from, or protecting, the right to exclude. The problem with his concept of human flourishing is that it stops short of an understanding of what it means to live freely. So while his analysis succeeds for most of his examples, it fails to interpret the Jacque case correctly. The first part of this Article examines Alexander's concept of human flourishing in light of the examples of legal cases that he uses to illustrate his argument. It should become clear in the course of this discussion that Alexander sees human autonomy as an end in itself. While he asks how the law enables a person to live freely, he does not ask what a person should do with this ability to live freely once one has it. But the law is not so shortsighted. It encourages the use of one's freedom to care for one's neighbor. So, following the discussion of Alexander's examples, this Article produces further examples of legal cases to show that the purpose of the law is to care for one's neighbor. In fact, two cases very similar to the Jacque case, in other jurisdictions, do allow a trespass over the property of another who has not given permission for that trespass. These cases derogate from the right to exclude in order to accommodate people in need even though the need is not life-threatening. There is a significant difference between Alexander's concept of human flourishing as living freely and the concept of human flourishing as living freely for a purpose. The former defines the good as the act of choosing and acting in an undirected way; the latter defines the good as the act of choosing and acting in a directed way. The second part of this Article examines how the former concept developed from the time of Grotius until today, when it is captured by the words of United States Supreme Court Justice Anthony Kennedy: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. "Right" in this sense does not permit an evaluation of the specific motivations, intentions, objectives, or consequences that are connected to actions that take place within the space of a right. The right stands apart from the purpose for which it is exercised. There is no good or bad in actions as long as they take place within the space of a right. This discussion helps show how Alexander's concept of right is really the space for freedom. It does not envision the function of law as promoting the use of one's freedom to care for one's neighbor. The thesis of this Article is that law must do more than promote the capabilities that enable a person to live freely; it must promote the proper use of those capabilities if one is to achieve true human flourishing. In particular, the law should encourage one to care for one's neighbor. The Jacques turned a cold shoulder to Steenberg's plea for help. In the Parable of the Good Samaritan, the priest and the Levite also turned away when they saw a man beaten by bandits lying on the other side of the road. They refused to take the time and trouble to cross the road to help him out. Yet the Good Samaritan-the good neighbor-was moved by compassion to stop his journey and spend the time, money, and effort to care for the man. Which of these people promoted human flourishing? Christ tells us that it was the Good Samaritan. If the law is to promote human flourishing it should encourage such behavior. The emphasis here is on the word encourage; this Article does not argue that the law should force such behavior. True caring can only result from free choice. Yet this does not mean that the law has no role to play. At the very least, the law should not discourage caring. By awarding the $100,000 punitive damage award in the Jacque case, the court discouraged the Jacques from behaving as the Good Samaritan did; it actually rewarded the Jacques' total disregard of Steenberg's difficulty. The third part of this Article examines the basis for an ethic of caring by looking to the work of Saint Thomas Aquinas. Aquinas starts with the notion that right is not a concept independent of direction. Right starts with a concept of what is due in a relationship between two persons; right is the correlative of duty. We are created for happiness, but happiness is not automatic nor is it something that we create for ourselves. It is something we attain by giving what is due, and what is due in a relationship gives the other a right. For Aquinas, then, not only must a person have the capabilities for human flourishing, but that person must act with those capabilities to achieve human flourishing. One does not have the space for freedom to act in ways that are devoid of moral direction. Every human act is directed to the good, and human autonomy, which exists in the capabilities for human flourishing, exists only so that one can choose the good in order to achieve human flourishing. Aquinas ultimately guides his reader to see that the good of human flourishing is the freely chosen giving of oneself in caring. When the Jacques turned away from Steenberg, they missed the chance to use their capabilities to achieve human flourishing. The law should not have encouraged this behavior. It should have rejected the jury award of $100,000.

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