1 C2-E. Hike info Common Law Cases –MacPherson –Exercise 3. Jones v Union Pacific Next class –100, 102, 104. Dworkin & Scalia –Exercise 5. U.S. v. Diamond Writing Assignments –Group 2. US v Diamond Agenda for 6th Class

2 Common Law Every case involves facts which are different than previous cases –So common law judge must decide whether new facts fall within rules established by prior cases (holdings) Or whether must create new rule –E.g. create new exception, as in Thomas v Winchester, which created “imminently dangerous” exception to Winterbottom v Wright –Sometimes, even though new case may seem to fall within rules established by prior cases, judge may decide to state holding differently Loop v Litchfield. “inherently dangerous” requirement rather than “imminently dangerous” requirement –Sometimes common law judges may decide to ignore or severely downplay importance of prior case Devlin v Smith essentially ignores Loop v Litchfield In deciding, whether to make an exception, modify holding, or ignore prior case, judges are usually motivated by sense of justice and/or policy

3 MacPherson Questions How do the majority and dissent deal with Winterbottom? Do they accord it the same importance? How do the majority and dissent interpret Thomas v Winchester? Do they accord it the same importance? How do the majority and dissent interpret Loop v. Litchfield? Is their interpretation the same or different from the way you interpreted the case when you first read it? How do the majority and dissent interpret Devlin v Smith? Which had the better interpretation of these four precedents, majority or dissent? What is the holding of MacPherson?

4 MacPherson: Law & Fact Testimony at trial in MacPherson v. Buick showed the following facts. The wheel manufacturer had stringent quality controls, inspected each wheel, and had never before produced a defective wheel. In order to prevent the spokes from drying out, the wheels were painted by the wheel manufacturer. The paint, however, made it impossible for Buick to inspect the wheels before using them in its cars. The car at issue in the case had been driven with heavy loads for over a year without problem. When the accident occurred, the car was going 30 miles per hour, hit a patch of loose gravel, hit a telephone pole, and fell into a ditch. The collision with the telephone and the impact of the car falling into the ditch were the most probable causes of the broken wheel spokes. The jury heard this evidence, but disregarded it, instead finding that the accident was caused by the defective wheel. The defendant did not appeal the jury’s factual findings, but rather based its appeal on the broader legal principle of privity of contract and the scope of exceptions to privity. a) Why do you think the defendant did not appeal the factual findings? b) Did Cardozo act unethically in deciding MacPherson v. Buick based on facts that were probably false? c) Does the erroneous nature of the facts recited in Cardozo’s opinion affect its value as precedent?

Jones Exercise Kansas trial court held that RR was liable for failure to help trespasser non- negligently injured by RR Appellate court reversed, because no “duty to rescue” Questions –Should law clerk for Kansas Supreme Court advise affirmance or reversal? –Is there agreement on common law rule? If not, which should apply? –Need more facts? Authorities –Beach on Contributory Negligence. Railroad owes duty to trespasser to mitigate severity of injury. Train which occasioned harm must stop. Cites Zombee –Zombee, 29 Md RR negligent in operating too fast. Also, employees have duty to remove injured person with proper regard to safety and humanity (not dump in warehouse) –Cooley on Torts. Zombee only means that RR subject to duty of care when its employees took charge of injured person –Barrows on Negligence. Duty owed only by individuals, not public as a whole (no “duty to rescue”). Cites Kenney –Kenney, 70 Mo RR liable for damage caused by fire only if negligent in causing fire

6 Theories of Adjudication Formalism –Legal reasoning is primarily logical reasoning –Judges should not rely on moral or policy reasoning Realism –Logical reasoning cannot answer many legal questions –Legal reasoning does and must incorporate moral and policy reasoning –Legal reasoning similar to legislative reasoning Judge is “interstitial legislator” Natural Law –Legal reasoning does and should incorporate unenacted principles –These principles are part of the legal system and distinct from policy reasoning –Different from realism, because relies on moral reasoning, whereas realism is open to many kinds of policy and pragmatic arguments