Andrew Jay McClurg, The Second Amendment Right to be Negligent, 68 Florida Law Review 1 (2016).
Only two constitutional rights — the First and Second Amendments — have the capacity, through judicial interpretation or legislative action or inaction, to confer a “right to be negligent” on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences. In the First Amendment context, for example, the Supreme Court, in New York Times v. Sullivan and its progeny, expressly embraced a right to be negligent in defaming public officials and public figures to protect speech. This Article asserts that through both common and statutory law the United States has enshrined a de facto Second Amendment right to be negligent in many aspects of making, distributing, and possessing firearms, the only legal product designed to inflict what the tort system is designed to prevent.
Explaining that it is a microcosm of a much larger issue, the Article focuses on one area: allowing access to guns by criminals through theft. Hundreds of thousands of guns are stolen each year from individuals and commercial sellers. By definition, they all go directly to criminals. A substantial percentage of guns used in crime were previously stolen. Nevertheless, the common law has conferred near complete immunity on gun owners and sellers who fail to secure guns from theft when they are subsequently used to cause harm. This occurs despite frequent judicial pronouncements that the risk of firearms demands the highest degree of care in their use and keeping. To accomplish this result, courts ignore or mischaracterize fundamental scope of liability principles, rarely even reaching the question of whether reasonable care was exercised.
On the statutory front, not only have Congress and most states failed to mandate firearms security measures, Congress has — in the name of the Second Amendment — given express protection of the right to be negligent, most prominently in the form of the Protection of Lawful Commerce in Arms Act. The Act immunizes manufacturers and sellers of guns from most tort claims, including claims against commercial firearms licensees for negligent security leading to theft.
The Article argues that this government-endorsed lack of responsibility results in the under-deterrence of risky conduct that, with reasonable alterations, could avoid substantial intentional and accidental injury costs.
My new casebook–Guns and the Law: Cases, Problems, and Explanation–composed with Professor Brannon Denning, just came out. Featuring cases, problems, and explanation, it offers a balanced treatment of gun law and policy in the United States, which is hard to find in this highly charged area.
Here’s the catalog description from Carolina Academic Press:
McClurg (pro-reasonable regulation) and Denning (pro-gun-rights) apply their decades of experience studying firearms policy and gun violence in this balanced, reader-friendly casebook addressing the contentious issues of guns in America. Through cases, problems, and provocative notes and questions, the book explores current federal and state gun laws, major constitutional cases, post-Heller Second Amendment litigation, modern self-defense rules such as Stand Your Ground laws, civil liability, gun laws in other countries, legal solutions to gun violence, and issues of guns and race, alienage, culture, and gender.
We designed the book to be accessible not only to law professors and law students, but to undergraduate and other graduate school professors. Professors interested in teaching a course in the area can obtain a complimentary copy from the publisher.
If you’re getting ready to start law school and are worried because you have a below-average LSAT score, you need to read my new ABA blog post. In it, I explain data about the correlation between LSAT scores and first-year grades, which is weaker than most people realize.
While LSAT scores correlate with success for some students, they do not reliably predict success or lack of it for any individual student because the LSAT does not take into consideration many key ingredients to success, including “grit.”
Look at the Memphis Grizzlies. They’ve made the NBA playoffs for six straight years without any superstars. Their motto, coined by Grindfather Tony Allen, is “grit and grind.” Now, Professor Angela Duckworth has authored a bestselling explaining her research that shows “grit”–perseverance and single-minded determination–is at least as important as native intelligence in predicting success.
Check out over at ABAforLawStudents.com.
West Academic Publishing and Amazon have teamed for a YUGE (picture Bernie Sanders saying it) discount on the bestselling law school prep book, 1L of a Ride, and new accompanying video course.
Right now, the bundled package is selling for only five dollars more than the book alone ($43.91 reduced from regular price of $80). Take advantage while it lasts.
Here are some sample clips from the video course. Check out 132 Amazon reviews (five-star average) for the freestanding book.
PUBLISHER AND AMAZON HAVE TEAMED FOR HUGE DISCOUNT ON 1L OF A RIDE BOOK AND VIDEO COURSE BUNDLE – $43.91 reduced from regular price of $80 and only five bucks more than the freestanding book.
Check out some sample video clips for the new 1L of a Ride Video Course (West Academic Press 2016) based on McClurg’s bestselling law school prep book of the same name. In addition to McClurg, the 13-part series features award-winning law professors Christine Coughlin (Wake Forest), Meredith Duncan (University of Houston), and Nancy Levit (University of Missouri-Kansas City).
Each video is roughly ten minutes, followed by a short self-assessment quiz. The videos include:
1. Introduction to the Video Course
2. Planning Ahead and Biggest Fears
3. Structure and Role of U.S. Courts
4. Socratic and Case Methods
5. Overview of First-Year Curriculum
6. First-Year Sample Course: Torts
7. How to Read and Brief a Case
8. The C.R.E.D.O.—Top Five Habits of Successful Law Students
9. Essential Study Techniques
10. Legal Research Basics
11. Legal Writing Basics
12. Managing Stress and Maintaining Well-Being
Research shows students gain not only from reading, but seeing and hearing, in part because video helps accommodate diverse learning styles. Use the videos to enhance comprehension and retention. Studies also show students prefer and benefit from one-on-one facetime with professors, which the videos, while no match for the real thing, can help simulate.
The video course is available as a standalone product or bundled with a print or e-copy of the book (recommended) here at the West Academic Publishing Store.
1L of a Ride — McClurg’s bestselling book about how to navigate the first year of law school is assigned as recommended or required reading at law schools throughout the country. Read the Amazon Reviews.
NEW: The 1L of a Ride Video Course is a 12-part series featuring McClurg and award-winning law professors Chris Coughlin, Meredith Duncan and Nancy Levit. Available separately or bundled with a print or e-copy of the book.
Meanwhile, to maintain their sanity, loved ones may want to look at The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student. Somehow, it became an Amazon Editors’ Favorite Book of the Year.
Insurance law expert and all-around funny, clever guy Randy Maniloff has come up with a fun test for spelling out the names of 10 famous U.S. Supreme Court cases using only emoji. How did this come about? He explains in his latest issue of Coverage Opinions:
The other night I was out to dinner with my 9 year old daughter. As we waited for her mac & cheese to arrive I decided to give her a lesson on the Supreme Court. I figured I’d start with the basic operation of the federal judiciary. From there move on to some landmark Supreme Court cases. And by dessert we’d be discussing the Necessary and Proper Clause. But she wanted no part of it – begging me to stop.
So I took a different tack. I’d tell her about a case and then she would use my phone to find emojis to write out the case name. This idea she loved. While it didn’t last long, as dinner arrived, it gave me an idea: The Supreme Court “Emoji Challenge.”
For non-lawyers, the first takeaway from this is how geeky lawyers can be. My own daughter grew up playing “Spot the Tort.”
I confess I fared poorly on the exam, but maybe it’s a generational issue. Law students: Be sure to take the test. Rumor has it that several Constitutional Law professors (only at the higher-ranked schools) intend to use it on their upcoming Spring final exams.
Andrew Jay McClurg, In Search of the Golden Mean in the Gun Debate, 58 Howard Law Journal 779-809 (2015).
The American gun debate is stuck and has been for a long time. Both sides remain trapped by their own hyperbolic rhetoric and reasoning fallacies, with the result that partisans are being heard only by those who already agree with them. This essay asserts that there is such a thing as “reasonable middle ground” in the gun debate and seeks to prove it by analyzing five specific measures that have the potential to reduce gun violence without infringing legitimate Second Amendment rights:
(1) bolstering federal support for research into the causes and prevention of gun violence, which Congress has blocked since the 1990s;
(2) extending instant background checks, currently required only for sales by licensed firearms dealers, to all gun sales;
(3) requiring gun purchasers to demonstrate their knowledge of state gun laws and basic gun safety rules and also their ability to safely handle the gun they are purchasing;
(4) mandating security measures by retail gun sellers to prevent theft; and
(5) implementing microstamping technology that would enable law enforcement to trace crime guns and ammunition cartridges found at crime scenes, facilitating the apprehension and prosecution of violent criminals.
While more substantial measures would be more effective in combating gun deaths and injuries, this essay purposely selected limited measures with the hopeful goal of getting people to recognize that there may well be middle-ground or a “golden mean” in the gun debate.
A Word Cloud reveals the stress and anxiety of 1Ls.
This is Part II of an exploration of psychological distress in law students. Part I explored empirical research showing the extent to which law students suffer from psychological dysfunction such as anxiety and depression. This part highlights a couple of non-scientific indicators of the problem.
Mid-semester, I asked a class of first-year Torts students to list their three top emotions about law school. Then I dumped all their answers into a Word Cloud program, which depicts entries by size according to how often the words are repeated. The results, as you can see from the picture, are not a pretty sight.
I also asked them to play Ernest Hemingway. You may have heard the legend that Hemingway once made a bet that he could write a complete story in six-words, and proceeded to write on a napkin, “For Sale: Baby shoes, never worn.” I assigned, as some other professors have done, my 1Ls to write a six-word story about law school. The majority of their stories reflected stress and anxiety. Here are some samples:
• I came. I studied. I suffered.
• Orientation. Confusion. Overwhelmed. Anxious. Exhausted. Graduation.
• Accepted application. Law school. Emotional wreck.
• Started school. Constant briefing. Now crying.
• Socrates meets Bentham under Sisyphus’ boulder.
If you’re a law student who is struggling, seek help. Talk to your professors about it. Visit the university counseling center. Do not accept depression or severe anxiety as normal consequences of law school. There is no shame in suffering these conditions. I was a wreck during my first year. You can read about it in my 1L story for the University of Missouri-Kansas City Law Review: Neurotic, Paranoid Wimps—Nothing Has Changed.
I talk to my students about these issues and each time I do, at least a couple of students contact me afterwards to say thanks and share their own experiences. In many cases, they take me up on my advice to seek help at the counseling center. When they do, invariably, they report back that they are doing much better.
On the Sunny Side. If you’re considering law school, do not let these posts scare you away. Law school isn’t all gloom and doom. The research just makes it look that way. No one has ever studied the positive aspects of law school, of which there are many. Here’s a happy statistic the might surprise you in light of what you’ve read in these posts: 83 percent of the 33,000 students who responded to the 2011 Law School Survey of Student Engagement reported that they found their law school experience to be either good or excellent.
Sure, law school is a challenge, but it’s supposed to be. It obviously is doable though, or we wouldn’t have 1.1 million lawyers in America. I love this comment from a student in response to a question asking whether her first year was better or worse than expected:
I love law school. I love the material, the professors, my classmates, and especially those few close friends I’ve connected with and grown close to. Law school is definitely more challenging in so many ways than I ever could have anticipated, but that’s what makes it great. If it was easy, I can say in all honesty that I would be disappointed. It’s supposed to be hard because it means something. The challenges are what help us grow and learn and open our minds and I wouldn’t have it any other way.
Hang in there! First-semester exams will be over before you know it.
And on the serious side …
Rainy Day Law Students
On my way to class recently, I came across this hand-written annotation posted alongside this rainy day painting hanging in our magnificent law school (recently ranked as the nation’s best law school facility).
Click to enlarge the picture and you’ll see it’s a man standing under a raining umbrella. The sign says: “Every day in law school”
As law students everywhere approach fall semester exams, it once again brought home the sad fact that many law students struggle with anxiety, depression and other psychological dysfunction.
I learned the depth of the problem researching 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School (West 2d ed., 2013). Here are some of the studies I came across:
- As far back as 1957, a study found that psychological distress in law students significantly out-paces not only the general population, but other graduate student populations, including medical students. (Eron & Redmount, 1957).
- A 1980s study of law and medical students at the University of Arizona found that law students scored significantly higher than both the general population and medical students in nearly every category of psychological dysfunction, including anxiety, depression, feelings of inadequacy and inferiority, hostility, and obsessive-compulsiveness. (Shanfield & Benjamin, 1985).
- With regard to the chicken and egg question of whether law school causes psychological distress or attracts people who are already inclined toward it, one study found that law students begin school with psychopathological symptoms similar to the general population, but that those symptoms become substantially elevated during law school. The same study found that 17-40 percent of the participating law students suffered from depression. (Benjamin, Kaszniak, Sales & Shanfield, 1986). Comparatively, the Centers for Disease Control reports that 9 percent of the U.S. adult population show symptoms of depression, including 4.1 percent who suffer major depression.
- In another study, researchers administered a battery of tests to entering law students to measure their states of happiness, life satisfaction, physical symptoms, and depression. The scores showed that the students were a mostly contented, normal group on arrival. By the end of the first year, however, they showed large reductions in positive affect, life satisfaction, and overall well-being, and large increases in negative affect, depression, and physical symptoms. (Sheldon & Krieger, 2004).
- A 2000 study of University of Michigan law students found that half of the students showed symptoms of clinical depression by the end of their first year, and that these high levels remained throughout their law school careers. Comparing the law students’ scores on a standard depression scale to scores for other groups subject to extreme stress yielded startling results. The 50 percent depression rate for law students compared to rates of 40-45 percent for unemployed people, 50 percent for people experiencing the death of a spouse or marital separation in the past year, and 50-60 percent for persons being treated for substance abuse. (Reifman, McIntosh & Ellsworth, 2000). This isn’t to suggest, of course, that being a law student is as bad as those events, but law school can push the brain’s depression buttons.
To the extent law school is responsible for causing emotional distress in law students, one doesn’t have to look far for plausible explanations, including the make-it-or-break-it single-exam format, heavy emphasis on grades and class rank, lack of feedback, competitive environment, high student-teacher ratios, Socratic method, and intense workload. Added to these traditional woes are modern worries about heavy debt-load and finding a job. Intangibly, the adversarial nature of the legal system in which law students are immersed, the emphasis on objective analytical thinking over personal values and emotions, and strains on personal relationships can all add to psychological dissonance.
Law students: Be self-aware. Students are sometimes the last to know, or admit, that they are struggling. I once had a first-year student rush out of class thinking she was having a heart attack. I ran after her and found her sitting on a bench clutching her chest. Her face was flushed and she was sweating and trembling. But it wasn’t a heart attack. It was a panic attack.
Stay on the lookout for anxiety or depressed states that are excessive and prolonged and are impairing your ability to function. If you’re struggling, know you are not alone. Many students suffer silently, hiding their distress even from close loved ones. I felt that way as a student. It’s okay to feel bad. Take advantage of the university counseling center. Free and confidential, your fees pay for it.
Part II of this post will offer more insights, but if you have access to a copy of 1L of a Ride, read Chapters 19 (The Bleak Side of Law School) and 20 (Maintaining Well-Being). Also study Chapter 15 (Exam Preparation) for strategies on approaching exams in an organized, reduced-stress way. In the meantime, remember: this too shall pass.
The “Companion Text” to Law School named an Amazon Editors’ Favorite Book of the Year.
The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student has been named one of the Amazon Editors’ Favorite Books of the Year. Pretty cool.
I was really touched by this. A first-year student at the University of Denver law school asked if she could use a line from 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School on her business card.
If only law students–and all of us–could always remain idealistic.
One doesn’t have to look far to find criticism of law professors for spending such a large portion of their time writing long, heavily foonoted, sleep-inducing law review articles. We even poke fun at ourselves for it, Exhibit A being The World’s Greatest Law Review Article.
But law review articles can and do have an impact. Have to share the good news that my proposal for a statutory presumption of elder financial exploitation in my recent Hastings Law Journal article, Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation, was signed into law by Florida Governor Rick Scott on June 20. The proposal passed unanimously through every legislative committee and both the Florida House of Representatives and Florida Senate, showing that at least some bipartisan issues still exist.
The article arose from a cruel financial exploitation incident involving our remarkable dad shortly before he passed away last year. He’s shown here during WWII.
On October 1, 2014, when the law takes effect, prosecutors in Florida will have several more tools at their disposal. In addition to my presumption statute, the new law (HB 409/Offenses Against Vulnerable Persons) creates the nation’s only elder hearsay exception and eliminates the requirement of proving deception or intimidation in elder exploitation cases.
Elder financial exploitation is a problem of enormous scope and growing rapidly as baby boomers age. The crimes are notoriously underreported and under-prosecuted, often due to the same factors that make older adults vulnerable to exploitation in the first place. If you care about this issue and know a legislator in your state, contact them and let them know they can help by supporting legislation similar to Florida’s.
In the meantime, watch after your own elders. Don’t make the mistake of assuming they are immune to exploitation. We would have voted our father to be the World’s Most Unlikely Victim.
If you’re contemplating or applying to law school, boost your ability to maximize success with the highest-rated law school prep book, 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School. Read the Amazon Customer Reviews.
And don’t forget the loved ones. They’re in for an adventure too. The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student is the only book written just for them. Named one of Amazon Editors’ Favorite Books of 2014.
A student from my very first Torts course a million years ago sent me this brilliant flow chart for the tort of nuisance, which comprises substantial and unreasonable interferences with the use and enjoyment of one’s property. The most interesting thing about it is that it actually summarizes the law pretty well, assuming one has dropped acid before studying it. Credit on the chart attributes this work of art to one Margaret Hagen. Well done!
A 1L sent me this “Torts Illustrated” image, sort of a grown-up version of Garrett v. Daily, a famous case that all law students study in which a five-year-old was sued for pulling a chair out from under an elderly woman. If anyone knows the original source, please send it along so we can give proper credit.
In the meantime, one can only imagine what the swimsuit issue would look like.
The National Jurist interviewed me and a couple of other law school prep book authors in its September 2013 issue regarding happiness tips for new law students. Here’s the article:
The National Jurist – Sept 2013 McClurg Interview
… to the tune of Peter, Paul & Mary’s “Where Have All the Flowers Gone?”
Lawhaha.com has collected funny law school stories from seventy-four law schools, but since the site was transformed into a WordPress blog, story submissions have dwindled. Must have something to do with the layout or maybe it’s the annoying CAPTCHA program on the Contact page, which requires people to type in those hard-to-read words as a spam-filter.
Whatever the reason, we know hilarity continues to unfold in the world’s law schools and want to preserve it here. Please send along your funniest law school moments for the comic and stress relief of lawyers and law students everywhere. See that your school is represented.
A 1L at St. Thomas University School of Law in Miami wrote to say she enjoyed The “Companion Text” to Law School and especially connected to the chapter on the personality changes that occur in law students, specifically, becoming overly analytical. She gave a funny example:
I find it hard trying to switch gears back and forth from analytical law school mode to normal person mode.
We are trained to “think like lawyers” every waking moment of the day. But that doesn’t always work around our non-law student loved ones. It creates a kind of dissonance, I guess.
A lot of times when I try to explain law school things to friends and family and they just don’t get it, I either don’t have the energy to figure out how to communicate it accurately or the communication gap comes during a particularly stressful period—just before memos are due, for example—and I am afraid to open my mouth because I might erupt with irritable snaps or some other stream of emotion that isn’t really directed toward my loved ones but will likely end up coming out that way.
Here’s a story that could be in The “Companion Text” to Law School about the whole mental rewiring process law students go through as they work their way through law school and the confusion that ensues as family members try to figure out what the heck is going on. I called my grandpa and the conversation went like this:
Me: “What’cha doing?”
Grandpa: “Well, I just walked through the door.”
Me: “Oh. Which door?”
Finally, after a long pause, he burst into laughter and said, “I just walked through the door to my house! I thought that was a given!” He laughed about it, but I could tell there was a little shock in his voice, like he thought I had lost my marbles.
I then had to explain to him that law students constantly clarify and ask questions because our brains have been trained think that way! Of course, it’s not that I lacked the common sense to assume he was implying he just got home and “walked through the door” of his house—but it’s like the law student in me had to ask just to be sure.
I have had other people make comments (half-jokingly, half seriously) about the fact that my “common sense” seems to have gone out the window since I became a law student. I’m sure I’m not the only one who experiences this—family members and friends don’t realize that lawyers and law students see factual assumptions as no-nos.
Being well-trained in critical-thinking skills–including knowing that the most accurate answer to most questions in law or life is “It depends on the facts”–is both a blessing and a curse to law students and lawyers. If you want a balanced, well-reasoned answer to a vexing question, ask a lawyer. On the other hand, law students and lawyers can drive people around them nuts by overanalyzing every word spoken.
Speaking of balanced “on the one hand, on the other hand”-thinking, here’s a judge who did it literally.
A first-year law student in Miami isn’t rushing out to buy these “career shoes.” As she explained in an email:
I am a member of a designer overstock/discount (and probably liquidation) club and was just browsing through today’s sales when I saw a heading that said “CAREER SHOES.” I clicked on it thinking I might find a pair of designer shoes suitable for pairing with a suit.
This photo shows their idea of career shoes for the modern woman. I do love a good pair of heels, but when I think of “career shoes,” I definitely don’t picture these styles … What’s the career they had in mind when they wrote the heading for this sale? Hooker?
–Thanks to Amy Holland.
During a Torts class last semester, we were discussing various applications of Judge Learned Hand’s formula for negligence, when a student asked, “Why isn’t it negligent to hold pinata parties?” To which I replied, “It probably is!”
Judge Hand’s formula, explained in a famous case called United States v. Carroll Towing Co., is that if the burden of avoiding a risk is less than than probability of the risk resulting in harm multiplied by the potential severity of the harm, it is negligent to engage in the conduct.
As applied to pinata parties, the only burden to avoiding the risk is to choose a different, safer game to entertain kids at a party, compared to the risk that a blindfolded kid swinging a bat could whack some other kid in the head and cause serious injury.
Some students thought I was just being, as usual, overly cautious Tortman, but then I came across this sign at a picnic area while bike-riding in Shelby Farms. Vindicated.
But wait, what is up with that prohibition on metal detecting?
A former student from Golden Gate law school who lives and practices in Hawaii sent this picture of a true torts-loving person’s car.
We will engage in outrageous speculation that it belongs to a plaintiffs’ personal injury lawyer. If you think about it, who else would get a “TORTS” license plate? Maybe geeky law professors with nicknames like Tortman or pattisiers who can’t spell, but really no one else. Insurance defense lawyers wouldn’t do it because it would violate the industry position that torts do not actually exist.
The car owner obviously loves tort law, but any challenger to the “Most Crazy in Love with Torts” still has to contend with the guy who got Judge Learned Hand tattooed on his arm. On the other hand, that guy may have simply loved Judge Hand or even barges.
–Thanks to Laura Ozak.
Reprinted from The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student (West 2012) with permission of Thomson Reuters.
Top movie hero, Atticus Finch.
Question. In 2003, the American Film Institute (AFI) released its list of the top fifty heroes in movie history. How many of those top fifty movie heroes were legal professionals (lawyers or lawmakers) or common citizens who used the law to achieve progressive objectives?
Answer: C. The eight legally inclined top fifty movie heroes include, in the number one spot, Atticus Finch (Gregory Peck), the Southern lawyer who fought for justice in a racially charged case in the screen adaptation of Harper Lee’s book, To Kill a Mockingbird. Mahatma Gandhi, who was trained as a lawyer, came in #21 for Gandhi (Ben Kingsley). Andrew Beckett (Tom Hanks), the AIDS-afflicted corporate lawyer from Philadelphia, made the list at #49. Jefferson Smith (Jimmy Stewart)—the protagonist in the Frank Capra classic, Mr. Smith Goes to Washington—reached the #11 spot. Stewart played a character appointed to fill a vacancy as a U.S. Senator, where he confronted and fought political corruption. Erin Brockovich (Julia Roberts), a down-and-out paralegal whose sleuthing led to a class action against a toxic waste-dumping corporation in the movie of the same name, checked in at #31. At #28 we have Juror #8 (Henry Fonda) from 12 Angry Men, the lone juror who refused to vote guilty in the trial of a teenager accused of murdering his father. The final two characters were workers who became labor union activists fighting for fair, safer working conditions: Norma Rae Webster (Sally Field), from Norma Rae, at #15, and Karen Silkwood (Meryl Streep), from Silkwood, at #47.
Reprinted from The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student (West 2012) with permission from Thomson Reuters.
Question. While some people purport to “hate” lawyers, the public remains fascinated by them, as evidenced by all the attention the legal profession receives in the entertainment world. Since the 1960s, more than fifty television series about lawyers have been produced. Well over 100 “lawyer movies” have been brought to the big screen and lawyer novelists such as John Grisham sell hundreds of millions of books. What about musical entertainment? Which of the following is not a real song by a popular artist?
A. I Fought the Law (and the Law Won)
B. Lawyers in Love
C. Sue Me, Sue You Blues
D. My Lawyer Bit My Doctor
E. Lawyers, Guns & Money
Answer: D. “My Lawyer Bit My Doctor” is not a real song, although it sounds like it could be a hit. The Bobby Fuller Four made I Fought the Law (and the Law Won) into a top 10 hit in 1964. Sadly, Fuller was found dead in his car shortly after he tasted fame. The death was ruled a suicide/accident, although some suspected Fuller was murdered. John Mellencamp paid homage to Fuller in his song, R.O.C.K. in the U.S.A. (“There was Frankie Lymon, Bobby Fuller, Mitch Ryder (they were rockin’).” Jackson Brown’s Lawyers in Love reached the Top 40 in 1983, while his album of the same name made it all the way to #8 in the charts. The sardonic Sue Me, Sue You Blues appeared on former Beatle George Harrison’s second solo album, Living in the Material World, released in 1973. Like many rock stars, Harrison had been embroiled in more than his fair share of litigation, including lawsuits over the breakup of the Beatles. The song contained biting lyrics such as, “Bring your lawyer, and I’ll bring mine; get together and we could have a real bad time.” Lawyers, Guns & Money was a typically over-the-top, hilarious tune from the late Warren Zevon that appeared on his 1978 album, Excitable Boy. It includes the classic refrain line, “Send lawyers, guns, and money; the s*** has hit the fan.”
One of the milder pictures of Stella Liebeck’s coffee burn injuries.
Any mention of lawsuits and hot coffee invariably invokes the grossly misunderstood “McDonald’s coffee spill” case of Stella Liebeck, a 79-old-woman who suffered third-degree burns after spilling a stryrofoam, takeout cup of McDonald’s coffee on her legs.
I apologize for the gruesome picture, but a large part of the misunderstanding of this case comes from people not appreciating that Ms. Liebeck suffered extremely severe injuries. There are much worse pictures of her injuries available on the internet. There is also a ton of information, and misinformation, out there about the McDonald’s case. Here (scroll down to “Public Perceptions: The McDonald’s Coffee Spill”) and here are a couple accounts of the facts. You might also want to check out the movie, Hot Coffee, which explores the McDonald’s case and, more generally, the tort reform movement.
Sideways on purpose. Click to expand.
At least one Canadian coffee seller found the idea of warning consumers about hot coffee to be amusing:
“If this was another country, we’d have to tell you this coffee may be hot. Good thing this is Canada!”
You thought “Risk” was a good game? Spotting risk is even more fun, and definitely more educational. As law students learn in Torts, the world is a dangerous place where the worst that can happen often does.
My 1Ls at the University of Memphis have been participating in a “Spot the Tort” Contest. Check out their photo entries. This is just one sample of the “accidents waiting to happen” they’ve documented in and around Memphis.
Are you in law school? Do you consider yourself to be a dedicated law student? Not sure? Measure yourself on McClurg’s simple 0-100 scale, with 0 being “I’m not totally thrilled with Judge Learned Hand” and 100 being “I aspire to be like the guy in this picture.”
Years ago, a student of mine at the University of Arkansas at Little Rock School of Law took a trip, to Philadelphia, I think. He struck up a conversation with a tattoo artist in a bar. When the artist learned he was in law school, she asked, “Have you ever heard of a judge named Learned Hand?” “Of course!” the student replied. All law students know and remember Judge Learned Hand.
The artist said the young man above came into her tattoo parlor with the accompanying picture of Judge Hand (the picture is from the famous Prosser, Wade & Schwartz Torts casebook used at 124 law schools) and asked to have Judge Hand, wearing a jester cap, tattooed on his arm. As proof, she followed up and sent this photograph to my student, who entrusted it to me.
For non-legals, Judge Hand was a famous judge who in a famous case–U.S. v. Carroll Towing–set forth a famous algebraic economic cost-benefit formula for determining whether injury-causing conduct was reasonable or unreasonable. If reasonable, the defendant is off the hook. If unreasonable, the defendant is liable for negligence and must pay damages. The formula is B < P x L. B stands for the burden of avoiding a risk of harm, P is the probability that the risk will actually cause harm, and L stands for the severity of the harm if it occurs. The formula states that if the burden of avoiding the harm is less than the probability of the harm occurring multiplied by the severity of the potential harm, the conduct is unreasonable (i.e., negligent). Conversely, if the burden of avoiding the risk outweighs the probability times the severity of harm, the conduct is reasonable (i.e., non-negligent).
The back of the picture is stamped with “Tattoo & Photo by Sherry Sears, Creative Images, Des Moines, IA.” So if you want to impress your professors and university’s counseling department, book a ticket to Des Moines.
Good news for legally inclined zombie lovers. Joshua Warren has compiled a casebook that “include[s] case opinions from the over 300 U.S. Federal Court opinions with the word “zombie” (and “zombies”, “zombi”, “zombis”, “zombified”, “zombism”, etc..).” These include cases from the zombified Supreme Court (available as postcards, along with zombie law teeshirts and zombie flashdrives).
Warren explains that this is a “serious” project. From his promotional website:
The “zombie” in federal courts are very interesting. Aside from the intellectual property cases that provide some reflection on modern zombie fiction, there are also ample metaphoric uses of the word in these judicial writings. Judges have referred to “zombie precedents” and “zombie litigation”. There are zombie corporations, zombie criminals, a significant number are social security cases in which people describe themselves in zombie condition and even a recent mentions of cybernetic zombies.
Unlike other works of zombie academia, the zombies in this book are all real. Most zombie scholarship uses hypothetical zombies as tropes to create entertaining and extreme fact patterns that can be used to explain complex subject matters. This has been used effectively for neuroscience (Schlozman, Voytek), international policy analysis (Drezner), public health (Center for Disease Control), geography (Kickstarter project: Zombie-Based Learning), survival skills (Brooks) amongst other subjects (See Zombie Research Society) including also academics who focus on the fictional character itself (Mogk, Brooks).
This Zombie Law book is different because it does not use zombies as hypotheticals to teach law. It is not conjecture about what zombies are or might be. This book is a compendium of real usages of the actual word in American jurisprudence. This book is a collection of real legal cases that literally include “zombies” (or similar word) in US Federal Court opinions..
The basic outline of the book will separate most cases into issues of corporations, medications, criminals and, of course intellectual property. Major sections will be devoted to Social Security (disability) law, corporate fraud and issues of criminal intent. There are noteworthy cases referring to post traumatic stress disorder and many recent Social Security cases regarding of fibromyalgia. The intellectual property cases are about popular zombie fiction and also so-called “vicious zombi” patents. In general, the idea of zombies in a mall is public domain for copyright but particular forms of zombie products are protected by trademark.
Frequently there is a sort of double meaning in the word. In Social Security cases, the word zombie is found as a symptom of pain, depression and anxiety but also the side effect of medications prescribed for those same symptoms. In criminal law, zombie appear in victim’s description of their assailant’s behavior but also as defense argument against criminal intent. For corporations the ironic question of corporate-personhood begs the question, ‘what is a person?’, which is often the implied question of zombie studies.
For all you law professors and other legal authors who thought there was no niche left to write about, Warren shows you just have to think outside of the box, in this case, the ones buried six feet under.
Two drink minimum; No packages wrapped in newspaper.
A student of mine posted this pic on Facebook of “Cardozo’s Pub” in Chicago. Is “Andrews’ Billiard Hall” next door by any chance?
For non-legals, Judge Benjamin Cardozo is one of the most famous American jurists. He authored several judicial opinions read by law students, including the majority opinion in Palsgraf v. Long Island Railroad. Judge William Andrews wrote a famous dissent in the same case.
Palsgraf, studied by every first-year law student, is the improbable tale of a set of scales allegedly knocked on top of the plaintiff, Mrs. Helen Palsgraf, as a result of an explosion that occurred when a man running to catch a train dropped a package of fireworks while being helped onto the train by railroad employees.
For the completely true fake inside story behind these opinions, check out Palsgraf Uncovered). Other posts related to the famous case are here, here, and here.
No known connection exists between this Chicago pub and the real Judge Cardozo.
Always read the fine print.
The start of another academic year is closing in quickly. If you’re going to be a new law student, you’re not the only one who needs to get ready for a wild ride.
Dozens of books have been written to prepare students for law school, but The “Companion Text” to Law School is the only book ever written to prepare the families and friends of law students for what to expect and how to deal with it.
Check out some review excerpts on this new flyer.
Whatever happened to “Appellant wins”?
Back in 2003, in McConnell v. Federal Election Committee, the U.S. Supreme Court cleared up a major legal dispute over campaign financing. Er, well, maybe not completely cleared up.
The basic question was whether the McCain-Feingold Act, a federal statute that imposed restrictions on political contributions, violated the First Amendment free speech rights of potential contributors. A challenging issue no doubt, but certainly not too tough for the mighty U.S. Supreme Court to resolve, right?
With nine justices voting, the result could have been as simple as 8-1, 7-2, 6-3, or 5-4 in favor of one side or the other. The nine wise ones chose a slightly more complicated path. Here is the Court’s actual voting lineup straight out of the case:
STEVENS and O.CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O.CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA § 305, and in which THOMAS, J., joined with respect to BCRA §§ 304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O.CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§ 311 and 318, concurring in the result with respect to BCRA § 318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and § 311, in which opinion SCALIA, J., joined as to Parts I, II.A, and II.B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J.,joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA § 323(e) and BCRA § 202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA § 305, in which GINSBURG and BREYER, JJ., joined.
Who won? I have no idea.
For embodying in a single voting lineup the reason why the most accurate answer to most legal questions is “It depends,” this case gets into the Strange Judicial Opinions Hall of Fame. If members of the world’s most powerful tribunal are unable to agree on what the law means, how could one expect poor law students to do so?
— McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003). Thanks to Elise Hendricks.
Law student and boyfriend holding hands on romantic date night reading product warning labels at Walmart.
Covering products liability in Torts and made a point of explaining what utter fun reading product warning labels can be, saying:
“In fact, if you’re looking for a really great night out, take your date to Walmart. Hold hands and spend the evening strolling the aisles reading product warning labels. It’s a guaranteed good time!”
One student and her boyfriend took me up on the idea. She sent along this great PowerPoint presentation of their romantic Walmart Product Warning Label Date.
The “Companion Text” to Law School: Understanding and Surviving Life with a Law Student (West 2012)
Table of Contents
As every lawyer and law student knows, law school is an adventure for the entire family. It’s a life-changing experience that affects everyone involved.
Dozens of books have been written to prepare students for law school, but what about all those other suffering souls–the relatives and friends who support and struggle right alongside the student on their wild and crazy journey toward a Juris Doctor degree? Who’s preparing them?
Named one of Amazon Editors’ Favorite Books of 2014.
Read interview with McClurg about the book on the Westlaw Insider Blog
The “Companion Text” to Law School is designed to equip loved ones of law students—parents, partners, and other friends and relatives—with all the information and tools needed to understand both law school and their stressed out, rapidly transforming student.
• Written by an award-winning professor with wide experience teaching thousands of law students at six law schools.
• Explains all the essentials of legal education, including the first-year curriculum, the Socratic Method of teaching, and the dreaded single-exam format.
• Explores the psyches of law students, including what they love to talk about, things you should never say to them, their sources of stress, and how law school can change their personalities.
• Addresses the impact of law school on outside relationships—and vice versa—and gives tips for navigating relationships with law students.
• Includes dozens of comments, anecdotes, and insights from real law students and their loved ones.
• Extras include a chapter on the types of jobs available to new law graduates, fun “legal” questions you can use to stump your student, a sample case, and a glossary.
• Backed up throughout by academic research.
• Written in a lively, reader-friendly voice, bolstered by humor.
A judicial friend from Florida sent along a case of first impression involving a parental rights determination between a birth mother and a biological mother that she calls “a law professor’s dream case.” It does sound a bit like a law school exam question—a very difficult one.
The case involved two women in a committed relationship who wanted to have a child. Ova from one of the women were removed, fertilized by donated sperm, and implanted in the other woman, who then gave birth to the child. Thus, one woman was the biological mother and one was the birth mother, an unusual situation to be sure.
Only the birth mother’s name appeared on the child’s birth certificate. For years, the two women reared their child together but, when the relationship failed, the birth mother, without telling the biological mother, fled to Australia with the child.
The trial court reluctantly ruled that only the birth mother was the legal mother but invited appeal of his decision. The Florida Fifth District Court of Appeal reversed, ruling that both women had parental rights to the child.
My judicial friend pointed out that this is a case begging, and no doubt destined, for scholarly attention by law professors and law students, although Judge Thomas D. Sawaya, writing for the majority, might shiver at the thought.
Judge Sawaya was not impressed that the only authority for the birth mother’s position that only gestational mothers have maternal rights were: law review articles and a Tennessee case that relied solely on a law review article.
Regarding law review articles relied on by the birth mother, the judge commented: “We do not believe that law review articles written by students and professors establish the common law.”
About the Tennessee case, Sawaya said: “The common law does not come from law students and professors who write law review articles, and we hardly think it comes from a decision rendered by a Tennessee court that does nothing more than cite a law review article as the source.”
Hmm, I guess that depends on how one defines “the common law.” The Tennessee case is part of the body of judicial precedent that forms the common law. It might not be persuasive precedent, but isn’t it still part of the common law? And simply because a judicial opinion relies on a law review article doesn’t remove the opinion from the realm of common law.
Courts cite law review articles frequently, including the U.S. Supreme Court, and there are innumerable instances of law review articles–including some written by students–that have turned the tide of the common law. As just one example, the products liability doctrine of market-share liability, first articulated by the California Supreme Court in Sindell v. Abbott Laboratories, was conceived from a student-written Note in the Fordham Law Review.
As an aside, my judge-friend was troubled that the majority’s analysis seemed to treat the child as a piece of property, giving no consideration to the best interests of the child, an issue the concurring opinion also focused on.
—T.M.H. v. D.M.T. , Case No. 5D09-3559 (Fla. 5th DCA, Dec. 23, 2011)
The National Jurist, the Magazine for Law Students, interviewed McClurg for an article in the September 2011 issue called The First Year: One Wild Ride, offering tips and insights about that crazy first year of law school. Check it out here.
David Cheifetz, Lawhaha’s friend from the north, sent in this Canadian court opinion about the judicial pecking order. David wrote:
Here is the pithiest and funniest summary of “stare decisis” ever written. Judge Cardozo’s explanation in “The Nature of the Judicial Process” may be the best justification and explanation, but it doesn’t hold a candle to what you’re about to read for wit and succinctness. The below summary comes from a decision by a Master of the Queens Bench of Alberta, Canada. A Master is a judge in all but name whose role is deciding preliminary motions in civil matters. The Master involved, Master Funduk, is noted for his witty judgments. The Queens Bench is the trial division of Alberta’s highest court. In the Canadian system, the highest court of any province is always the province’s Court of Appeal, even if the highest provincial trial court is called the Superior or the Supreme Court of the province. Here’s how Master Funduk summed up his role (some paragraph breaks inserted):
Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.
I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada.
Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts’ judicial ladder. I do not overrule decisions of a judge of this Court.
The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.
— South Side Woodwork (1979) Ltd. v. R.C. Contracting Ltd.,  A.J. No. 111, 95 A.R. 161 at 166–67 (Alta. Q.B.). Thanks to David Cheifetz.
Legalese embraces redundancy. Legalese embraces redundancy. Legalese … sorry, just getting in the spirit. In a convoluted dispute regarding a real estate conveyance, Judge Mark P. Painter, Ohio Court of Appeals, First District, offered his common sense take on the phrase “free and clear title” and other legal redundancies:
Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.
So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here—an assertion that they somehow have different meanings.
The Norman Conquest was in 1066. We can safely eliminate the couplets now.
What’s your favorite legal redundancy?
— Kohlbrand v. Ranieri, 823 N.E.2d 76, 78 (Ohio Ct. App. 2005).
It’s publish or perish in the law professor business, and most of that publishing occurs in law review articles.
Law professors strive mightily to make their law review articles stand out by coming up with clever titles for them. The trick is coming up with a title that is attention-getting, but also descriptive. This, of course, requires use of the ubiquitous colon, which appears in the vast majority of law review titles. Some law professors look down on colons in law review titles (yes, this is part of the important stuff we actually spend time thinking and talking about) and eschew them, but the result is often a title that doesn’t give a clue what the article is about.
Here’s a top candidate for the best law review article title:
Erik S. Jaffe, “She’s Got Bette Davis[‘s] Eyes”: Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses, 90 Columbia Law Review 528 (1990).
Oldsters will recall that “She’s Got Bette Davis Eyes” was a smash hit for Kim Carnes in 1981. Originally written by Jackie DeShannon and Donna Weiss in 1974, Carnes took the song to number one on the Billboard charts where it held the top spot for nine weeks.
— Erik S. Jaffe, “She’s Got Bette Davis[‘s] Eyes”: Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses, 90 Columbia Law Review 528 (1990)
Law students learn to avoid risk, in part because of what is known as the “availability heuristic”–a mental shortcut people use to unreliably evaluate the probability of risks based on whether they can remember the event ever happening before.
Law students and lawyers tend to over-estimate risk because they can always imagine a situation (an availability) in every context of life where things went wrong. In all the cases they read, things went wrong, which is why they became cases. Their constant exposure to Murphy’s Law causes them to become very adept at (even obsessive about) spotting and avoiding risks in their own lives.
Here a careful student of mine studying in the law library with her laptop took the extra-prudent precaution of posting a warning sign near to the cord and plug to avoid a tripping injury risk.
Chief Justice John Marshall, author of Marbury v. Madison.
In a 2005 opinion, an Alabama Supreme Court justice (that well-known jurisprudential heavyweight “Tom Parker”), without a trace of irony, called the U.S. Supreme Court “presumptuous” while declaring Marbury v. Madison and its progeny to be “unconstitutional.”
For non-legal types, Marbury is the landmark 1803 Supreme Court case authored by the great Chief Justice John Marshall that established the power of “judicial review”; i.e., that the Supreme Court gets the last word in disputes with the legislative and executive branches of government.
The Alabama case involved a challenge to the constitutionality of certain statutes affecting taxation and the funding of the Birmingham, Alabama civic center authority. Justice Parker included this footnote in his concurrence (italics added.):
21. . . . Despite everything in the text of the Constitution, its history, and the expressed intent of the Framers being completely contrary to the notion of judicial supremacy, the United States Supreme Court has presumptuously arrogated such a position for itself simply by declaring it so.
In Cooper v. Aaron . . . the United States Supreme Court stated: “[Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” Tellingly, this proclamation of judicial supremacy was made without citation to the Constitution or any other authority. The result of this unconstitutional doctrine of judicial supremacy has been an increasing shift of the balance of powers from the elected executive and legislative branches of the federal government to the unelected judiciary, thereby emboldening federal courts to rule upon constitutional questions based upon foreign law or perceived changes in public opinion instead of the Constitution and its history. . . .
The turning away from our national compact by federal courts now threatens our country with a constitutional crisis.
There’s a constitutional crisis over Marbury?
— Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204, 223 n.21 (Ala. 2005) (Parker, J., concurring). Thanks to Brian Brock.
Andrew Jay McClurg, Neurotic, Paranoid Wimps―Nothing has Changed, 78 University of Missouri-Kansas City Law Review 1049-61 (2010).
In an issue of the UMKC Law Review devoted to “1L Stories” and intended as a tribute to Scott Turow’s classic book, One L, the author recounts his own first-year tales of neurotic, paranoid wimpism (descriptors from Amazon.com reviews of Turow’s book). Turow wrote the foreword for the issue.
The author’s narrative asserts that a dominant theme of One L, the story of Turow’s first year at Harvard Law School, was negative affect. Turow talked of anxiety, fear, stress, panic, vulnerability, self-doubt, shame and grief, wounded self-esteem, unhappiness, paranoia, embarrassment, oppression, and insanity.
The author describes his similar experiences and asserts that, contrary to popular belief, things have not changed that much in legal education since his and Turow’s day.
Professor Jonathan Turley exposed phony outlandish tort cases.
Although several years old, Professor Jonathan Turley’s USA Today article exposing phony tort cases remains must-reading for anyone concerned about the tort reform movement. Why? Because people are still circulating these tall tales.
You know those crazy tort lawsuits you read about, the ones that make people indignant about the tort sytem, the ones politicians and tort reformers use to build public support for the movement, the ones that get endlessly forwarded to email inboxes?
They’re crazy, to be sure. But, one problem. A lot of the most notorious cases are fabricated, as Turley explored in his article.
The notorious–but apparently fictitious winning-plaintiffs–and their outlandish “cases” include:
• Kathleen Robertson, a woman who–imagine this–received a $780,000 jury award against a furniture store after she tripped over her own son.
• Carl Truman, who won a $74,000 judgment after his hand was run over by a neighbor. The neighbor could not see Truman because he was kneeling down while in the process of stealing the neighbor’s hubcaps.
• Terrence Dickson of Bristol, Pa., a man who received a $500,000 award against a garage-door manufacturer after he almost starved while trapped in the garage of a house he was burglarizing while the family was on vacation.
• And my personal favorite, a Mr. Grazinski, who won more than $1,750,000 against Winnebago when the RV he was driving went off the road after he put it on cruise control at 70 mph to go into the back to fix a cup of coffee.
Turley was unable to track down records showing that any of these, or several other notorious crazy lawsuits, actually existed.
It should be more than a little troubling to people that state legislatures have passed thousands of tort reform statutes throwing out 200 years of carefully considered common law (judge-made law) in part based on sound-bite reporting of cases that never happened.
— Jonathan Turley, Legal Myths: Hardly the Whole Truth, USA Today, Jan. 30, 2005.
Cardozo wrote the famous majority opinion in Palsgraf.
Several lawhaha visitors sent in Mark Fass’s article in the New York Law Journal about an alleged curse on the family of Helen Palsgraf, the most famous torts plaintiff in history. Every lawyer remembers Mrs. P from law school. To test this theory, visit an elderly, dying lawyer in a coma and shout “Palsgraf!” Immediately, he will recite: “A man carrying a box wrapped in newspaper boarded a train at the Long Island Railroad Station … cough, cough … ack.”
The box contained fireworks. When it was dislodged by employees of the Long Island Railroad trying to help the man on the train, the fireworks exploded, allegedly knocking a scale onto Mrs. P. Mrs. P’s saga led to the legendary, and incredibly confusing, opinions by Judge Benjamin Cardozo (that’s Cardozo in the picture–handsome fellow he was) and Judge William Andrews studied by students year in and year out at law schools great and small.
Now Fass reports that Mrs. P’s accident began a curse on the Palsgraf family, at least that’s what some of her descendants believe. One descendant fell off a ladder in 1965 and sued the manufacturer, but never made it to trial because the ladder was stolen. Another lost her thumb when a ping-pong table collapsed. A lawsuit led to a small settlement. Another descendent tripped while jogging over a broken curb, but was discouraged by lawyers from filing suit.
The most intriguing Palsfraf mishap reported by Fass involves a descendant who lost control of his truck on an icy hill in 1968. The truck slid towards the edge of cliff. Guess what saved the life of Mrs. P’s closest living relative? The truck’s wheels got caught on a track of … you guessed it, the Long Island Railroad. (Cue Twilight Zone theme.)
— Mark Fass, Palsgraf Railroad Injury Proximate Cause of Family Curse?, New York Law Journal, Dec. 10, 2004.
As a Torts prof, I loved this tidbit sent in by Elise Hendrick. Good old Mrs. Palsgraf. You can try, but you can’t keep her down.
Elise was listening to oral arguments before the U.S. Supreme Court in Exxon Co. USA v. Sofec, 116 S.Ct. 1813 (1996), and came across the following exchange between George Playdon, counsel for Sofec, and Justice Scalia. The two were engaged in a colloquy about the maritime supervening cause doctrine:
Scalia: I’m not sure that you need a “doctrine of supervening cause.” Is a doctrine of supervening cause anything other than Palsgraf? When you say, you know, that the negligence … the causality … had long since terminated. Once you say you’re out of the scope of the risk, what do you need a doctrine of supervening cause for? And isn’t that basically your case?
Playdon (chuckling): I smile—I never envisioned thirty years ago that I’d have the opportunity …
Scalia: Of arguing Palsgraf!
Playdon (stammering, laughing): Obviously, Palsgraf is a foreseeability doctrine, just like Hadley v. Baxendale is a foreseeability problem.
Elise speculates that this may have been the first time the implausible case of Mrs. P has been mentioned in court since Palsgraf was decided in 1928.
— Thanks to Elise Hendrick.
Just one question: Is it okay to use the stairs?
Not surprisingly, since they are full of law professors and law students, law schools are pretty safe places. Be hard to overlook these warnings at the University of Memphis law school.
Wait, what is that in the background? Looks like a dead body. Maybe just a tired 1L.