We have honored the late Judge Mark Kravitz for many of his contributions to the law, but one characteristic of his that deserves special note has not yet been discussed in these pages. That was his willingness to recognize and honor the valid points in both sides of an argument, even when he found those points unavailing. In this regard he was a model judge for all times, not only for his appreciation of the complexity of issues, but his confidence in acknowledging that complexity as he crafted his rulings.
Yale Law Professor Dan Kahan, who taught a class with Judge Kravitz, captured this point well in a commentary he posted this last fall, entitled "The aporetic judge."
As Professor Kahan explains, "aporetic" is a Greek term for which there is no single English word translation, but means an appreciation for the complexity of a problem. In the case of judges this attribute is especially important. It entails an ability to acknowledge the strong points of the losing side and to grant them fair consideration in an opinion. By doing so a judge acknowledges that an outcome often is not obvious, and the right answer can be found only by a careful assessment of the facts and the best legal authorities.
Judge Kravitz was a master at this disciplined approach to judging. As Professor Kahan eloquently pointed out, his decision on the Occupy New Haven injunction was a model for all judges to follow. While ultimately siding with the city against the occupiers of the New Haven Green, he refused to accept simplified justifications by either party, and did the hard work of respectfully parsing the best arguments on both sides before reaching a cautiously weighed conclusion. By this public reasoning showed a willingness to be accountable not just for his decision but for his reasoning process, revealing it to examination by the parties, the public, and the appellate courts.
This kind of careful discussion should be present in all judicial decisions, not the hallmark of the noble few. Judges too often write as if their conclusions are unassailable, and that no other outcome could reasonably be reached. Perhaps judges avoid crediting the losing side of their decisions out of a desire to shield their conclusions from challenge. Or maybe they seek intellectual short-cuts to avoid the difficult work of addressing the strongest points against their conclusion.
Whatever the reason, when a court decision belittles the arguments of those they rule against, it undermines our system of justice. It can cause uninformed readers to think that the losing side had no reasonable basis to argue his or her case, who may in turn infer that that the judge was not neutral or fair. These conclusions may all be wrong. But an opinion that gives short shrift to the losing argument does not give readers the information they need to know that the court’s reasoning process was fair and appropriate.
Our case law also benefits from Judge Kravitz’s approach. What is wrong today may some day be right. By spelling out the best arguments against his conclusion, Judge Kravitz illuminated an alternative path that might have validity under different circumstances. Our society and our law are constantly evolving. Court decisions that credit and explain both sides of close cases help us rethink the law, and provide a new perspective when we may need it.
The disciplined and intellectually courageous reasoning process that Judge Kravitz followed enriches our law and dignifies our judicial system. We all benefit from the example he set. •