girl ipsa loquitur: 09/05/2004 - 09/12/2004 Email me!

Saturday, September 11, 2004

Orbit of DANGER!

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Warning... The following post is a little more law school inclined than most others. You can mitigate the confusion by simply enrolling in law school and attending torts class until you've learned all there is to know about the Palsgraf decision. Or you can clink the link and read it yourself (It's quick, I promise). Or you can just believe me when I tell you how this stuff is and go from there...

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.

Friday, September 10, 2004

Self Evident?

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I am back in the law school saddle for what seems to be my best year yet! This years line-up is Constitutional Law, Evidence and (*sigh*) Corporations (you can't win 'em all).

Constitutional Law.

The God Father of all legal subjects, don't you think? Most Americans are at least passingly familiar with it. We all know that there is some pre-amble stuff, we get to say what we want, have a gun, remain silent, get an abortion, and engage in private, adult activities in our bedrooms. But, as intrepid students of the law, our con law prof thinks we ought to know more than this.

We begin at the beginning, Marbury v. Madison, (which is our first look at what will come to be known as "That darn Supreme Court making stuff up out of whole cloth!") and move along into the nebulous realm of "kinder and gentler" Socratic examination. Our prof, a federal judge, wants us to question. He wants us to be "intellectually honest" with ourselves. He wants us to think. Needless to say, I am beside myself with Christmas-morning-type joy at the very prospect. I could hardly sleep that night from all my intellectually honest thinking of questions.

Here, for your examination is one of those very thoughts:

I think that the use of the words "Self Evident" in the Declaration of Independence was a stroke of genius.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Our prof mentioned this language in an off-hand way and characterized it as skirting the issue. Rather like the idea that the writers weren't really sure what they wanted to say so they just went with "Well, isn't it obvious?" That's one way to look at it I guess, since we don't know certainly what was meant. I don't like that take, though. It's too accidental.

I prefer to think that the statement was intended to be enduring and relevant for hundreds of years, just like it's successor, The U.S. Constitution. Those things which are "unalienable" today may not resemble what the founders had in mind in 1776. Had they made a laundry list, instead of a just saying "There's a bunch and here are a few to give you the idea" ("among these are Life, Liberty and the pursuit of Happiness.") they may well have limited the relevance of their thinking. Dated it. Made it an anachronism today.

Instead, they left it to us to determine what is "self evident" in 2004. And what will be "self evident" in 2050. That was not a waffle or a wiggle or a lazy dodging of the issue. That was pure genius.

When we are thinking about the constitution and what it was meant to accomplish we have to put it in a context. The Declaration of Independence makes a really good place to start putting that context together. It enumerates what we thought was important, what we wanted to achieve and why. To think of it as just a casual, partially assembled half-a-thought... well, I am not going to do that. I may suffer for my pro-court, things keep changing, post-modernistic thinking next time I speak up in class. But my thinking will remain all of those things that my prof wants from me; Inquisitive, thoughtful and intellectually honest.

I know what you're thinking, "That was obvious, wasn't it?"

"To live is so startling it leaves little time for anything else." ~ Emily Dickinson

"Ouch!" ~ Mrs. Palsgraff

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