1 Common Law –Review –Exercise 3. Jones v Union Pacific Introduction to Theories of Adjudication Next class –100, 102, 104. Dworkin & Scalia –Exercise 5. U.S. v. Diamond –Writing Assignments -- Group 4. Exercise 5. US v Diamond Agenda for 8th 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 Cardozo’s emphasis on foreseeable and probably danger in Thomas v Winchester –Sometimes common law judges may decide to ignore or severely downplay importance of prior case Devlin v Smith essentially ignores Loop v Litchfield –Sometimes judges emphasize facts that were not important in prior opinion Cardozo emphasizes knowledge of defect in 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

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

4 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