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.

My Phony Valentine

BY ANDREW J. McCLURG

If the rules of romance were taken as seriously as rules of law, 99 percent of new lovers would be pursuing fraud claims against their partners. Why? Because with everyone on their best behavior in the early stages of a relationship, what we see is seldom what we get.

Protect your legal and emotional rights. Enter relationships with open eyes and informed consent. Require all suitors to execute the …

Truth-In-Loving Disclosure Statement

I, the undersigned paramour, hereby agree to abide by the time-honored romantic tradition of completely misrepresenting who I am at the beginning of our relationship, to be increasingly candid in the middle stages and to finally reveal my stunning array of character defects, true beliefs and annoying quirks at the end.

This agreement shall be fully implemented within six months, being the estimated time in which our eternal, undying love will change to bitter resentment:

1. Ridiculously early in our relationship, I covenant to begin calling you my “soulmate,” with the appropriate numeric designation to distinguish you from my other ___ [fill in total number of lifetime soulmates; write on back if additional space needed].

2. When asked why my prior relationships didn’t work out, I shall state “we had different goals,” failing to mention that one of mine is to sabotage all relationships.

3. I will tell you that I love all the little things you do, when in fact, I hate all the little things you do, especially the way you (choose one or more): talk incessantly, squeeze the toothpaste tube in the middle, sneak up on me with a flashlight.

4. Men: I shall misrepresent that I love to communicate, listen to Sting, and especially dance. Women: I shall misrepresent that I have a deep interest in the standings, statistical leaders and weekly injury reports for all major sports.

5. I will insist with a straight face that “I never want to try to change you,” even as my list of suggestions for improving your appearance, personality and lifestyle approaches the 10,000 mark.

6. I shall pretend to find it cute how your cat climbs all over me while I’m sucking on an asthma inhaler at the same time your dog is attempting to have intimate relations with my leg.

7. We shall talk on the phone at the following frequency: 1st month: five times per day. 2nd month: three times per day. 3rd and 4th months: once per day. 5th month: when I need a ride. 6th month: when I forget to check my Caller ID.

8. In the 2nd month, I agree to begin combining the words “committed” and “you” in the same sentence; provided: I will not add “mental institution” to such sentence until the 5th month.

9. In months 1-2, we shall engage in frequent, excessive public displays of affection. During months 3-5, PDAs shall decline in direct proportion to number of syllables we utter to each other while dining out. In month 6, excessive PDAs shall resume, but only with persons not party to this agreement.

10. I will see only the good in your many negative qualities until the 6th month, at which point I will come to the startling realization that your playfulness is really immaturity, your caring is co-dependence, your confidence is narcissism, your …

11. At all relevant times, I shall confuse love with lust.

Insurance Deterrence

BY ANDREW J. McCLURG

Insurance companies enjoy a unique privilege among businesses—the ability to unilaterally alter contract terms in their favor simply by sending out an “Important Notice” notifying policyholders of the changes.

Just last year, customers of a major insurer received an Important Notice informing them that one of the most desirable features of their homeowner’s policy—guaranteed replacement cost coverage—was being eliminated. This was accomplished through a sophisticated legal maneuver known as: printing the words “this coverage is eliminated” on a piece of paper.

How do insurance companies get away with changing the rules in the middle of the game? I asked a contract law expert who said the technical explanation is “Because they’re insurance companies.”

I decided it’s time to fight back, so I sent my own . . .

Important Notice
to Insurance Company

Enclosed is my new homeowner’s policy. Several changes have been made. Some of these changes expand existing coverage, while others expand it even more. Still others have been left blank for me to fill in later. If you have questions about the changes, feel free to call me during normal business hours while I am away at work. Do not call during non-business hours as I will be very busy breaking up my furniture, which is covered under my new policy at 12 times replacement cost.

Premiums. Due to the rising costs of basic necessities such as the fireworks manufacturing equipment I am stockpiling in my insured dwelling, I regret to inform you that I have been forced to adjust my premium.

Please remove all the zeroes from my current premium amount and stick them on the end of my smoke detector discount. Deduct the new premium amount from the smoke detector discount and remit the balance to me in biannual installment payments.

Definition of “Insured.” A lot of my acquaintances feel they are wasting money paying for policies they are terrified to use because you have threatened to raise their premiums if they have the nerve to actually file claims. To reduce costs and improve efficiency, we’ve decided to consolidate.

The definition of “insured” in my policy is hereby amended as follows (changes in italics): “you and your parents, aunts, uncles, siblings, cousins, beer-drinking buddies, co-workers, dates, auto mechanic, hair stylist, dentist, personal trainer, people you wave to on the street and anyone who forwards you jokes by e-mail.

Fire Damage. For too long, you have arbitrarily denied coverage for one of the most common losses faced by millions of hardworking Americans—arson. Coverage for this occurrence is now included.

Vandalism. Your overly narrow definition of vandalism is amended to include red wine stains, crayon marks, home improvement projects gone awry, bad decorating decisions and holes in walls caused by policyholders smashing their skulls against them upon receiving Important Notices from insurance companies.

Additional Coverages. The coverage section of my policy is further amended to include “anything else that might go wrong.”

Reservation of Rights. As always, I reserve the right to change this policy whenever I want without bargain, exchange or consideration simply by sending you another Important Notice.

Since I mailed the above notice, I’ve received a flurry of Important Notices from my insurance company, all of which I’ve been dissolving in the leaking vat of sulphuric acid I maintain in my well-insured living room.

Hair Piece

BY ANDREW J. McCLURG

What’s so funny about a hairy hand? That’s what I set out to investigate after several requests for a column about Hawkins v. McGee, 146 A. 641 (N.H. 1929), better known as “the hairy hand case.”

Hawkins was a contracts case in which the defendant doctor guaranteed plaintiff, a young man with a burned hand, “a hundred per cent [sic] perfect hand” if he would let the doctor perform surgery on him. Instead of a perfect hand, plaintiff ended up with one that grew thick hair, apparently because of a skin graft from his chest.

I conducted a scientific poll to determine exactly why Hawkins is so funny to lawyers. After months of investigation, the only statistically valid answer turned out to be: “I don’t know. There’s just something funny about a hairy hand.”

The survey respondents added their opinions: (1) that a hairy gallbladder also would be funny; (2) that a hairy eyeball would be odd, but not necessarily funny, and, in fact, could create a driving hazard; (3) that “hairy hips” sounds funny, but would actually be pretty disgusting; and (4) that hairy teeth would require difficult choices between hygiene and style.

Still in search of something really funny about Hawkins, I delved into the case itself. The issue was one of damages. The court ruled that the damages for the botched operation should be the difference in value between a hairy hand and a good one.

How much is a hairy hand worth? That sounds funny. See what you think, in this real FAKE excerpt from the court’s …

Opinion

What is the difference in value between a hairy hand and a good hand? The issue can be resolved only by careful evaluation of the relative burdens and benefits.

It is beyond dispute that a hairy hand carries substantial burdens. Haircut costs, already high, would double. Even finding a hand salon could prove difficult. And how does one style a hairy hand? Blunt cut? Shag? Dreadlocks?

The court takes judicial notice that a “bad hair day” can cause severe emotional distress. Must plaintiff now suffer the trauma of a “bad hand-hair day”as well?

Finally, we would be remiss to ignore the embarrassment plaintiff will suffer from the tactless stares and inquiries of those who would question whether he is master of his domain.

But defendant asserts that against these burdens must be weighed the many values of a hairy hand.

First, he contends plaintiff will be able to wash his car without a mitt. While that would be convenient, plaintiff presented expert testimony that it is only 1929 and he doesn’t own a car.

Defendant next argues plaintiff can save money in winter buying fur gloves; however, this argument is based on the speculation that plaintiff will be successful both in locating and befriending an opposite-handed victim of hairy-skin-graft malpractice to split the cost of a pair of gloves.

Defendant also notes plaintiff can pretend the hand is a tarantula and use it to scare people at parties. However, we believe this joke would get old fast and do not consider it a long term benefit.

Defendant’s strongest argument is that there is something intrinsically funny about a hairy hand. While we agree, we nevertheless enter:

Judgment for plaintiff.

Note: This parody is not about the real plaintiff in Hawkins, who suffered genuine hardship.

Reference Work

BY ANDREW J. McCLURG

Law schools require applicants to submit multiple letters of reference in support of their applications. While this would seem to be an excellent method for screening candidates, a problem arises from the fact that many letters of recommendation come across as completely bogus.

After years of study, linguists have finally determined the reason: they are completely bogus. Why? Because law school applicants make two common mistakes in choosing references.

The first blunder is opting for letters from “big names”—politicians, judges and lawyers—rather than people who actually know the applicant. Admissions committees are flooded with less-than-sincere letters from muckety-mucks, like this one sent on behalf of fake applicant Daryl Langdon by a prominent U.S. Senator:

Dear Admissions Committee:

It is my great pleasure to recommend Dernyl Plankton for admission to your law school. I feel I am well-qualified to comment on Durgle’s qualifications because, although I’ve never actually met the young man, a generous contributor to my campaign who is a friend of Darnell’s family showed me his college yearbook picture.

From my intimate acquaintance with this grainy black and white photograph, I can state confidently that Dino possesses all of the qualities necessary to do well in law school, including two more or less normally-placed eyes, relatively few acne scars and a sizable forehead, suggesting the presence of a decent-sized brain. Please admit Daphne to your law school, so my campaign contributor will quit harassing me.

Sincerely,
Bernard Schlepclot (signature by machine)
U.S. Senator

A second common error is submitting letters of recommendation from people whose most recent contacts with the applicant date back to the Pleistocene era. Perhaps some applicants meet only one reputable human being in their lives willing to say something nice about them in writing.

I don’t know if that’s what happened in Daryl’s case, but … well, just look at this letter:

Dear Admissions Committee:

Lil’ Daryl asked me to write a letter for him and I am happy to do so. I was Daryl’s teacher at the Tots on Cots Daycare Center and know him well.

Daryl has many fine qualities. He’s as cute as a bug, especially when he remembers to wipe his nose, which has a tendency to drip. He is also one of the best little best nap-takers I’ve ever seen. That boy can sleep 8 hours a day if you let him, and sometimes we did.

Daryl shows natural leadership ability, especially among smaller toddlers whom he can easily shove to the ground. He is also a very tidy young man. He always puts his toys away when he’s finished pounding other children over the head with them.

The only qualities that might hinder Daryl in law school are that he whines when he doesn’t get his cartoons and wets his pants frequently.

I have every confidence Daryl will make a very fine lawyer.

Yours very truly,
Mrs. Doris Lichenstock

The good news is that Daryl got into law school despite the questionable reference letters. The bad news is he still wets his pants, especially when called on in Property.

Bad Law

BY ANDREW J. McCLURG

Researchers have announced alarming findings from a study of science textbooks used by middle school students: they’re riddled with inaccuracies. Led by John L. Hubisz of North Carolina State University in Raleigh, investigators poured over the dozen most popular science texts and compiled a list of errors 500 pages long.

This got me worrying about legal education. Has anyone ever studied law school casebooks for accuracy? I took on the task, painstakingly reviewing casebooks in the first-year curriculum for errors. The results were shocking. Here are just a few excerpts of questionable accuracy from some of the most popular first-year casebooks:

Famous Property text:

“Of all areas of law, future interests holds the greatest everyday relevance to most lawyers. Hardly an hour goes by that a lawyer isn’t called on to apply The Rule in Shelley’s Case, although most lawyers ‘pay the rent’ with bread and butter Rule Against Perpetuities cases.

“The law of future interests is so simple and straightforward that ‘future interest mill’ firms now rely on secretaries to fill out forms to manage their hectic practices, which can average 1,000 fertile octogenarians a week.”

Famous Legal Writing text:

“Flowery run-on sentences with no punctuation are the key to good legal writing. Before beginning any sentence, ask yourself, ‘How many words can I cram into it?’ If your answer is less than 250, rethink the sentence.

“When writing a brief, use lots of inflammatory, ad hominem-filled hyperbole, as judges greatly prefer it to clear reasoning.

“Don’t worry about typographical errors. No one notics thm. And remember, if you personally think your writing is good, you’re probably right.”

Famous Torts text:

“Tort reform is a very non-controversial issue. American business leaders in particular are unanimous in their praise that our tort system functions like a smooth-running timepiece. Their only complaints are that personal injury lawyers receive inadequate compensation and that high punitive damages awards occur too infrequently.

“On the other side, most plaintiffs’ lawyers feel strongly that industry can be counted on to do the right thing and that the judicial system should just back off and leave corporate America alone.”

Criminal Law text:

“Because murder is a serious felony, it is sound legal advice to tell your clients to dispose of the body and murder weapon quickly. Explaining with a well-timed wink that fewer witnesses means lower litigation costs can help ease your path to a smooth trial.

“One thing you don’t have to worry about practicing criminal law is getting paid. Criminal clients are by nature honest and reliable people who remain grateful even after conviction. Most will carefully set aside a portion of their income each month from selling drugs in prison to pay outstanding legal bills.”

Famous Civil Procedure text:

There’s been concern in educational circles that texts are being “dumbed down.” I didn’t believe it was a problem in law school until I came across this excerpt in a Civil Procedure casebook:

“Once upon a time there was a Pennoyer and a Neff. They lived in a dark, scary forest called Personal Jurisdiction. One day a scary monster called the Supreme Court descended on the forest, laying a curse upon the land …”

Pretty disturbing results, huh? Don’t be too concerned. Other educational research shows that the harm caused by flawed textbooks is minimized by the fact that most students don’t read them.

The© Controversy

BY ANDREW J. McCLURG

The music industry has won its lawsuit against Napster to prevent song swapping on the Net. Pfizer, maker of Viagra, is suing a Little Rock woman for selling bottles of “Niagara,” claimed to be an aphrodisiac for women. Margaret Mitchell’s heirs sued to block publication of Alice Randall’s controversial takeoff of “Gone With the Wind.”

With the explosion in intellectual property rights, I knew it was only a matter of time before trouble arrived, which it did last week in the form of an alarming cease and desist letter from an IP firm claiming to represent the heirs of one Mr. Ug.

The letter asserts that Mr. Ug—allegedly a Homo erectus Peking Man domiciled in a cave in China 500,000 years ago—was first to utter the word the. The heirs are claiming a copyright in the and want me to quit using it. They also seek damages for past infringement. I could use some legal advice. Here’s the letter:

Dear Sir:

We recently became aware of your meager attempts to achieve humor through the© deliberate and willful exploitation of our client’s property; to wit, the© word the.©

Specifically, in the© past 48 months, we have documented more than 7000 copyright infringements of the© protected work in your humor columns, email, bathroom graffiti and other writings, all in violation The© Copyright Act of 1976, §101 et seq. Last month alone, we collected 63 infringing checks from your garbage written to The© Ole Neighborhood Tavern.

Mr. Ug copyrighted the© in or about 498,000 B.C. when, as a result of an apparent misunderstanding of the properties of fire, he pressed tongue to palate while simultaneously exhaling, thereby authoring theeeeaaaaahhhhieeeee, one of the most enduring and highly-creative works of the 498th-century, B.C.

(Immediately thereafter, he authored another dramatic work — ump, ump, ump — while bludgeoning himself with a club to distract from the pain in his flaming foot.)

As Mr. Ug’s lawful heirs, our clients assert a copyright in the© entire compilation work and a derivative right in each subpart: the, eee, aaaaa, hhhh, ieeeee, as well as ump (which we are currently disputing with Major League Baseball).

As you may know, copyright law requires that the protected work be expressed in a tangible form. Fortunately, Mr. Ug was a Peking Man of great foresight.

Enclosed is a photograph of the inside of Mr. Ug’s residence where you can clearly see the copyrighted works carved in the rock directly above the crude drawing of what appears to be a sabre-tooth tiger devouring Mr. Ug’s neighbor (we also assert a copyright in all pictures of tigers, neighbors and food products). According to our expert anthropologist, the chisel mark at the end is in fact a © symbol.

We demand that you immediately cease and desist using the© either orally or in writing and that you compensate our clients for past use. Be advised that This Letter© is copyrighted and that copying, quoting or even reading it will subject you to additional legal action.

Very truly yours,

We Own It, the Macho IP Firm

Personally, I feel strongly that the overly-aggressive assertion of intellectual property rights threatens free speech, and you can quote me on that. However, if you do it without written permission, you’ll be hearing from my intellectual property lawyers.

Oil Fume

BY ANDREW J. McCLURG

Following a summer of high gas prices, blackouts in California, and record oil company profits, some worriers think we might need to tweak our nation’s energy policy. Since many of the proposed solutions will entail considerable legal wrangling, lawyers need to be well-informed about this vital issue. Here are some of the most commonly-asked questions:

Q. Who’s to blame for our current energy woes?

A. Unfortunately, U.S. supplies of persons to blame for the energy crisis are running dangerously low. Experts predict that if we don’t begin conserving blame soon, we will run out by 2010. In the meantime, politicians and pundits have taken to bashing Etienne Lenior for inventing the internal combustion engine in 1860.

Q. What happened to President Bush’s campaign promise to pressure OPEC to “open the spigots”?

A. Aides claim the President never used that term, but rather, said “gropen la friggets,” which aides describe as “just one of those things the President says sometimes.”

Q. The Administration favors reducing clean air standards as a way to boost the economy. Would it work?

A. Possibly. Such a move could lower gas prices, as well as stimulate lagging markets in throat lozenges, asthma inhalers and oxygen tents.

Q. Is seems like a lot of these questions are picking on President Bush. Do the Democrats have anything better to offer?

A. Yes. A prime source of alternative energy: hot air.

Q. Should we be worried about the proposal to drill for oil in the Alaskan wildlife preserve? What if there’s a spill?

A. Oil companies say not to worry because they’ve come up with a new plan for protecting the Alaskan environment, which is to paint everything black. The companies claim they’ve been judged unfairly for spills simply because oil shows up badly on snow and water. An oil company exec likened the plan to buying a dark sofa to hide red wine stains.

Industry officials have also criticized local wildlife for not engaging in more self-help. As one industry official put it, “If a seal can balance a ball on his nose, why can’t he learn to rub a Handi-Wipe® on the ground. It’s not rocket science.”

Q. I read that American consumers are so fed up with high gas prices that they’re staging protests. True?

A. Yes. Millions of SUV owners recently converged on soccer fields around the nation to rev their engines and talk on their cell phones about the problem. To prove their commitment to being part of the solution, they turned down their AC units to medium for five minutes.

Q. There’s been speculation that recent oil company mergers have contributed to the problem by limiting competition. Is that true?

A. “Nonsense,” says Wink Gouger, new CEO of Amoco-Chevron-Exxon-Mobil-Texaco, Inc.

Q. A lot of people think a complex conspiracy lies behind gas price hikes? What’s the real story?

A. $omething $impler.

Q. Maybe I’m missing something, but 28 years ago an OPEC embargo practically ground the nation to a halt. Since then we’ve been consuming 17 million barrels of oil a day, while paying almost no attention to conservation or the development of alternative fuels. Don’t we as a nation bear part of the blame?

A. No. That’s very unreasonable of you to even ask that question.

For Children’s Sake

BY ANDREW J. McCLURG

Protect the environment. Reform welfare. Lower taxes. Regulate the Internet. Control guns. And do it all for the sake of children!

Politicians are coming to believe that any issue can be sold to the American people so long as it is dressed up in the language of protecting children, as demonstrated by this recent argument on the House floor in favor of increased subsidies for tobacco:

“Mr. Speaker, fellow members, I’m here today to urge support for my bill to increase federal subsidies for tobacco. A vote for my bill is A VOTE FOR CHILDREN!

“Look around us. What do you see? Falling stocks. Declining earnings. Plummeting home sales. But youth smoking isn’t declining. No sir. It’s rising and it will keep rising, thanks to the tobacco industry and the children of this great land of ours. God bless them.

“There are those among us who oppose more tobacco and smoking due to health concerns. But what lesson do we teach our children if we let a few malignant cells kick our butts, especially those little punks causing all that small-cell lung cancer? Sure, 400,000 smoking-related deaths a year seems like a lot, but we have a whole lot more than 400,000 PRECIOUS CHILDREN in this great nation of ours!

“Just think what a better place America would be if more children smoked. We’d have a lot fewer kids going to bed hungry at night, because tobacco is a proven appetite reducer. We’d have a lot fewer kids running from the police, as their lung capacity would be severely diminished. We’d have a lot fewer kids … well, we’d just have a lot fewer kids period.

“Rather than condemn the tobacco companies, we owe them our blessings for helping to keep our nation’s children off the streets and in hospitals where they’re safe.

“It’s a national tragedy that our children lag behind the rest of the world in math, science and verbal skills. But kids who smoke know their math! I guarantee you that. A child can’t shell out $3.50 for a pack of cigarettes without knowing how to manage her allowance, especially when she’s buying them illegally from convenience store clerks who aren’t exactly rocket scientists when it comes to making change.

“Speaking of science, educational research has long shown that science is best learned through hands-on experiments. Smoking allows children to experience first-hand the amazing physiological effect of ammonia additives in pumping up the bloodstream’s ability to absorb nicotine at an accelerated rate.

“Moreover, because of the walloping buzz this delivers, our children will be learning this important lesson while their mental acuity is at its highest level.

“You want to talk about language skills? Where do you think kids are going to learn words like ‘anaplastic carcinoma’ and ‘thoracic irradiation’ if not from the tobacco industry?

“I want to close with a touching story about a POOR DISADVANTAGED CHILD in my district who lives next to an enormous tobacco farm. The nearest playground is 20 miles away, but you don’t hear him complaining. Why? Because, like a lot of kids, Lefty’s learned that tobacco harvesting equipment is much more exciting to play on than swings and slides.

“Finally, I seek unanimous consent to place into the record these important documents in support of my bill—pictures of my INCREDIBLY CUTE GRANDCHILDREN!”