Born to Judge

Six days before his recent death, Thomas E. Dewey worked on an article for the next issue of the Columbia Law Review, which will be dedicated entirely to a man whom Dewey knew well. As Governor, he had appointed him to a vacancy on New York's highest court in 1946. Now, 25 years later, Dewey wrote: "Some lawyers become judges because they have worked hard enough and long enough in the political vineyard to persuade the dominant political party to nominate them. Some judges, like ambassadors, arrive at their destination by the route of heavy political contributions. Then there are some lawyers who become judges because they were born to be judges. Stanley H. Fuld, Chief Judge of the Court of Appeals and of the State of New York, was born to be a judge."

Fuld, now 67, has indeed become one of the nation's most respected judges. 'Last week there was fresh evidence of his forward-reaching impact on the law. Speaking as chairman of the administrative board of the state judicial conference, Fuld announced that as of May 1, 1972, New York courts will dismiss charges against any criminal defendants, except accused murderers, who have not been tried within six months of arrest through no fault of their own. They will also be freed on bail or their own recognizance if their trials have not begun within three months. Designed to reduce a scandalous backlog in criminal cases, the new rules are necessary, said Fuld. "if the rights to which both the accused and the state are entitled are to be made more meaningful."

40-Draft Man. Despite his enormous prestige within the profession, Chief Judge Fuld is such a private man that he is virtually unknown to the general public--even though his office is elective. Still, he has no trouble winning: in the last election he was the unopposed candidate of all four New York parties--Republican, Democratic, Liberal and Conservative. In fact, he is too busy at his diligent judging to campaign at all.

"It is nothing for him and his clerks to look up and read all the cases in all the states on any given legal point," says a former clerk. Jack Weinstein, himself now a federal district judge. Adds Columbia Law Professor Maurice Rosenberg, another ex-Fuld clerk: "He is definitely a 40-draft man. He'll write and rewrite endlessly. His style is simple and direct. It's rather like telling them you're going to tell them, then telling them, then telling them you've told them."

Son of a New York Times proofreader, Fuld began polishing his unusual talent for legal clarity at Columbia Law School ('26), where he was an editor of the Law Review and earned his way by teaching at City College. In 1935, after nine years of general law practice in Wall Street, Fuld joined Tom Dewey, then a crime-busting special prosecutor, in his famous probe of New York City rackets. With his appetite for hard work (he still toils 14 hours a day), Fuld became the Dewey team's specialist in deflating the complex legal defenses raised by the underworld's lawyers. In the probe's 2 1/2 years, recalled Dewey, "every indictment was sustained and no convictions were reversed."

When Dewey became Manhattan's district attorney, Fuld headed his indictments bureau and soon became a leading criminal-law reformer. Appalled at the prolix, mumbo-jumbo language of indictments, he boiled the lengthy forms into two or three precise sentences. Fuld's forms are still in use throughout the state. By weeding out other legal technicalities, such as overly narrow categories of larceny, which left loopholes for the guilty, Fuld earned high praise from at least one leading judge, who wrote to urge his elevation to New York's top court. Governor Dewey soon obliged.

Whose Orthodoxy? Fuld's judicial opinions have been especially significant in resolving "conflict of laws" between jurisdictions. In the 1963 case of Babcock v. Jackson, for example, the issue was whether a New York woman resident could recover damages from the New York driver of a car in which she had been injured in a Canadian accident. Though New York law permitted recovery, Canadian law did not. Under rules prevailing at the time, such damage suits were invariably governed by the law where the accident occurred. In a pioneering decision, Fuld permitted the woman to recover under New York law. His precedent has since been cited in more than 70 scholarly articles and 200 court opinions.

Fuld, in fact, has constantly enjoyed one of judging's greatest pleasures: seeing many of his dissents later become law. In 1951, for instance, the New York court upheld the banning of an Italian film, The Miracle, on the ground that it was "sacrilegious." In dissent, Fuld scoffingly asked the court majority: "What is orthodox, what sacrilegious? Whose orthodoxy, to whom sacrilegious?" Courts have since abandoned such censorship. Other Fuld dissents ultimately have been carried into law by the U.S. Supreme Court, on issues such as free speech, obscenity and literacy tests. Most recently, he led his court in granting prisoners a new right to counsel at parole revocation hearings--a right that is nonexistent in most other states.

Rethinking Precedent. With his passion for privacy, Fuld rarely mentions publicly that he has two daughters (one married to a lawyer, the other to a doctor), that he commutes between his offices in Albany and Manhattan by nothing grander than a bus, that his favorite hobby is mountain climbing (he once nearly reached the top of the Matterhorn). The judge prefers to be known by his written decisions.

Perhaps the best example of Fuld's reasoning was a 1957 opinion in which he re-examined the legal tradition of stare decisis (precedent decides). If it is argued, he wrote, "that stare decisis compels us to perpetuate a rule--out of tune with the life around us, at variance with modern-day needs and with concepts of justice and fair dealing--a ready answer is at hand. The rule of stare decisis was intended not to effect a petrifying rigidity, but to assure the justice that flows from certainty and stability. If, instead, adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive and no principle constrains us to follow it."

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