Orbit of DANGER!
[Click to read]Today, while slogging my way through the remarkably dull subject of corporations, I was pleased to get a case authored by New York Court of Appeals (that's their supreme court level tribunal for some reason called appeals... N.Y. just has to be different) Chief Justice Cardozo. I LOVE Cardozo. Lets not even worry about the law. Who cares about the rules when you're reading a Cardozo opinion you should be in it for the language. Let me give you an example:
"A trustee is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most sensitive..."
Isn't that good stuff? How about this:
"He might steal a march on his comrade under cover of darkness and then hold the captured ground. Loyalty and comradeship are not so easily abjured..."
I love Cardozo. He said this stuff in my corporations case book. Imagine how fun he was in torts.
So now, for your entertainment, I will travel back in time to first year torts and the legendary case of the hapless Mrs. Palsgraf (Quoted hilariously below). In this opinion, also authored by Benjamin Cardozo, we are first treated to the "Orbit Of Danger" (!GASP!)
Doesn't that sound like a carnival ride? Or some kind of cursed geographical location like the Bermuda triangle? Nope. It's nothing so interesting and death defying as a drunken carny assembled contraption. (Although such a contraption would have its own orbit of danger... Is it foreseeable that a carelessly assembled 5 story carny roller coaster might injure someone? Well, DUH.) The orbit of danger is just a fun way to say "You should of seen it coming."
I like to imagine that Ben put a lot of thought into his choice of words for the Palsgraf opinion. He knew he was going to have to contend with that bleeding heart Andrews and his "joy to the world you owe a duty to every-stinking-body" dissent. I think Cardozo wanted to start a popular revolution in the risk assessment behavior of Americans.
Just think, instead of crying "Fore" or "Duck!" we would holler "Orbit of DANGER!" instead. We could design and manufacture, market and sell special tools to measure, mark and clearly delineate our own orbits of danger. Laser devices which measure out the likely distance our tortious behavior might travel. Different devices to detect the orbit of danger around others. That would have ROCKED. Bingo! No more foreseeability problems here. Just map out where that orbit of danger lies and then stay the heck out of it!
Turns out, though, that we are some what unimaginative and didn't catch right on. It's too bad really. Think of the boost to industry. I think it was Holmes who tried to do that same sort of thing once by imposing a duty on motorists to get out of their cars and look up and down the tracks for oncoming trains before crossing. That didn't work out so well either.
But a combination "Duty to Look-Orbit of Danger" detecting device? That would have been pure gold.
posted by Girl Ipsa at 8:16 PM
3 Comments:
Yeah, Meinhard gets quoted a lot more than you'd think...and I'm as much a fan of the plodding mediocrity as the next guy, he knew all that fancy greek and latin stuff, after all. But the reason Palsgraf is a great case is precisely why you should be afraid of anyone else trying to be Cardozo...
Cardozo was a philosopher...not a realist. The reason he's always named the second best justice of the century after Holmes is that Holmes at least put a touch of realism behind his whole cloth creations...a simple jurist doing his job like Antonin Scalia will never make that list, tho, because he just can't think in the clouds...
Granted, every word he gives us about the interrelation of duty and negligence is true...but even Holmes would've had the sense to not leave the door open for that kind of arbitrary interpretation...the fact is you can build neither a machine nor a judge that'll give you a uniform idea of how far the zone of danger will extend...and all Cardozo cared about was that as soon as you put the fireworks in the picture, you were in the land of improbability...now look where we are.
But sure, he was poetic as hell...
It was Andrews that made that land of improbability argument. Cardozo sought to LIMIT the duty to the infamous "orbit" by saying, to my mind, "Life is dangerous Mrs. Palsgraf... If you can't take it then stay home."
Next post is going to be very, very complementary of Scalia... only to see if you will argue with me.
Oh, I have no objection to the substance of the ruling. Palsgraf had no right to recover....and yet, there's gotta be a better way than to institute an arbitrary system of guesswork...
As to Antonin, aside from the fact that I'd probably err a bit more on the side of caution re: recusal motions, I doubt any support of the lone true jurist will get any argument from me...
And keep in mind, politically, the man and I are as opposite as Ashcroft and Eddie Izzard...
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