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October 3, 2005

Harriet Miers the Law Student: Budding "Judicial Activist?"

I
n 1968, a young Harriet Miers published a law review note (.pdf file) in Southern Methodist University's law review. She either chose or was assigned the Texas Court of Civil Appeals case of Fisher v. Carroussel Motor Hotel, 414 S.W.2d 774 (Tex. Civ. App. 1967). The question was whether a person could recover damages for battery and for the infliction of emotional distress in a situation where the battery did not include a clear physical touching. The Texas appellate court held that he could, and Miers appeared to agree.

The facts of the case were that a black man made lunch reservations by telephone at the hotel's restaurant. But when he showed up for lunch and picked up a plate in the buffet line, a restaurant employee grabbed the plate out of his hand and told him that the restaurant did not serve blacks. He sued for battery and infliction of emotional distress.

There is just one little gem in Miers' piece that lurks (as all little gems do) in the footnotes. She is discussing the question of whether the Texas courts had the authority to create a new tort of intentional infliction of emotional address where the legislature had not done so. She appears to come out in favor of such a power (which, to my eye, is an unremarkable feature of our system of common law adjudication), but drops a footnote in which she says this:

"[An earlier Texas court] reasoned that the common law should rule unless changed by the legislature and that the question of the 'new tort' was embedded in serious policy considerations which should be determined only by the legislature. However, courts have both changed common law where it became obsolete and have ruled in decisions involving vital policy questions with great success."
She was right, of course: courts have done these things. Note, though, that it's a good bit different from the usual "courts-should-follow-the-law-and-not-make-the-law" mantra that gets recited at confirmation hearings.

UPDATE: Professor Doug Berman wonders about Miers' work with a spiritual group that assists prisoners in re-entering society.

Posted by Eric at October 3, 2005 1:43 PM

Comments

All very interesting, Eric, I will look forward to future posts as we move toward the nomination.

JJA

Posted by: johna at October 3, 2005 3:26 PM

Yes, interesting, but not enlightening by itself. Students often give the arguments that they think the professors want rather than the student's true thoughts.

Posted by: Marv Toler at October 3, 2005 10:39 PM


fisher v. carrousel was affirmed by the texas supreme court, 424 sw2d 627 (Tex. 1967), and is a fairly famous case. at least it appears in my old Prosser torts casebook, and i remember my torts prof grilling us on it.

note 2 after the case: "Might the case be regarded as one of imaginative lawyering, assuming the state was not ready to recognize intentional infliction of emotional harm as a tort?"

Posted by: nc_litigator at October 4, 2005 11:55 AM