Palsgraf Uncovered

Originally appeared in the January 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Palsgraf Uncovered

BY ANDREW J. McCLURG

Palsgraf v. Long Island Railroad. The mere mention of it evokes memories of that fateful day at the Long Island train station when two railroad workers trying to help a man board a moving train accidentally dislodged a box he was carrying. The box turned out to contain fireworks that exploded and knocked a scale over onto Mrs. Palsgraf.

Two judicial giants—Benjamin Cardozo and William Andrews—wrote opinions in the case, Cardozo for the majority and Andrews in dissent. For 70 years, 1Ls everywhere have been forced to try to unravel these legendary, but exceedingly complex opinions.

Palsgraf suffers from a lot of problems, but the biggest one, as documented in the illustrious Prosser casebook, is that “[t]he event could not have possibly happened.” These were ordinary fireworks, which fell onto the tracks below a sturdy platform. No one testified to seeing a scale fall. Mrs. P’s first complaint alleged that stampeding passengers knocked the scale over.

How did an accident that never happened become the most famous case in torts history? The answer lies in this little-known transcript of an in-chambers colloquy between Cardozo and Andrews:

Cardozo: This is the most ridiculous case I’ve ever seen. There’s only one answer.

Andrews: Dismiss it?

Cardozo: No way. Let’s write legendary exceedingly complex opinions about it. Remember back in law school how everybody hated us because we were always raising our hands with the right answers? Here’s our chance to get even. Picture all those law students obsessing about a legendary case that never happened. Imagine the panic attacks. It’s rich!

Andrews: It does sound fun, but what makes you think this preposterous mess will become legendary?

Cardozo: Look, I’m a big name. People think everything I write is legendary. Here, I’m going to say a person is liable for negligence only if the plaintiff was foreseeable.

Andrews: What’s so legendary about that?

Cardozo: The way I’m going to say it. I’m going to obfuscate the hell out of it. Obfuscation is the key to all great opinions. Just look at Pennoyer v. Neff.

Here’s a sample I already drafted: “What the plaintiff must show is a wrong to herself; i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct wrongful because unsocial, but not a wrong to anyone.”

Andrews: What the heck does that mean?

Cardozo: Nothing! That’s the beauty of it. It gets even better: “Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all.”

Andrews: I don’t understand that at all, but I guess that’s the point. What should my legendary opinion say?

Cardozo: Let’s really mess with their heads by writing about two completely different subjects. I’ll go on and on about duty, then just when they think they might be figuring things out, you start talking about proximate cause. Use that ridiculous hypo you’re so fond of.

Andrews: The chauffeur and the car full of dynamite? That’s no hypo. It’s a joke. The chauffeur says to the guy with the dyna—

Cardozo: Whatever. Just cram it in there somehow. And remember—the overriding goal is to write an opinion that makes the reader think he’s losing his mind.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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