1. Agenda for 8th Class Admin Name plates Handouts
No class this Friday (9/22)
Rescheduling classes
No classes last week of semester
M 11/27, F 12/1
Make-up Classes
F 10/27 1-2PM. Rm 101
F 11/3 1-2PM. Rm 101
Common Law
Review
Exercise 3. Jones v Union Pacific
Introduction to Theories of Adjudication
Next class
## 100, 102, 104. Dworkin & Scalia
(WG4) Exercise 5. U.S. v. Diamond

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 probable 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

3. 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
Class list for preferences and sign in
Digital voice recorder
Nameplates and marker
Handouts of PowerPoint slides
IP chart