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Home :: Archive :: 2008 :: May ::
Hard Cases
The Shakespeare Conference: SHK 19.0322  Thursday, 29 May 2008

From:		Larry Weiss <
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Date:		Wednesday, 28 May 2008 12:49:47 -0400
Subject:	Hard Cases

Suggested by SHK 19.0318 SHAKSPER Roundtable: Shakespeare's Intentions

[Editor's Note: As I announced, Cary and I are experimenting this week with the 
new Roundtable (RT) format -- messages will be sent out as they arrive and a 
digest will be sent out at the end of the week that includes everything from the 
week -- invited essays, guest moderator's commentary, and discussions. As we 
have been proceeding, we have discovered matters that we had not anticipated. We 
wanted to distinguish between Roundtable (RT) discussions and regular traffic on 
the list, and we wanted in the RTs to encourage critical engagement with the 
issues of the topic but discourage having less focused comments. Having a RT 
digest once per week was intended to address this issue; however, we were also 
concerned that the once-a-week digest format might be inhibiting discussion. So 
our dilemma is to try to find a "middle way" between the two, a way that, 
nevertheless, preserves the distinction between RT and regular conversations on 
SHAKSPER. Larry Weiss's submission below forced us to engage this dilemma. The 
comments are interesting and are indeed suggested by what had been written; 
however, comments are only marginally related to the topic of intentions. We 
wrote to Larry Weiss; and, as it turns out, he shared our concern. We have 
decided to change the subject so that the submission that, although suggested by 
the Roundtable, would appear as a "regular" SHAKSPER offering suitable for 
continuation as a thread on its own but apart from the more directly focused RT 
thread on intentions. -Hardy Cook]

 >we argue most of the time about what the lawyers call
 >the "hard cases" that make for poor law and we ignore
 >the very large body of agreement that makes interesting
 >disagreement possible in the first place.

Actually, the word "hard" in this cliche does not mean "difficult"; it means 
"causing hardship." The idea is that when judges are faced with the alternative 
of following established law or altering it to avoid inflicting a hardship, they 
may well commit an error. Apropos of the "intention" discussion, this notion is 
what Portia *seems to mean* when she tells the Duke not to "wrest the law to 
[his] authority | To do a great right do a little wrong" as "'Twill be recorded 
for a precedent | And many an error, by the same example, | Will rush into the 
state."

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