Palsgraf in Legos

I've mentioned Palsgraf v. Long Island Railroad Co. before.  A couple of days ago, one of my classmates clued a few of us into a lego re-enactment of the case (some details modified to update the case for our time).  Go watch it.   In my book, it's up there with the RBI Baseball re-enactment of Game Six.

Finding Motivation

Nine weeks into the semester, midterms are in the rearview mirror, and it's about that time to start thinking finals.   They're still six weeks away, so that may seem premature, that is, until you learn that those tests count for anywhere from 70% to 90% of the grade in any given class.  They are what the whole semester has been building towards.

So I'm looking at class preparation with the exam in mind, doing my best to keep the big picture in view, and asking questions like, "what in this day's discussion and reading is going to be tested, and what might that look like?"

To be honest, this also means I'm less motivated to read cases with the vigor that I brought to them in the first few weeks of the term.  Being able to read them faster also makes me more likely to skim as I go.

So I've brought a motivational speaker into my inner monologue.  Instead of "punch the keys", though, his opening line is "read the cases" (which I imagine is followed by something like, breathe in the facts, let the judges speak to you).

And every so often, when the day's work is done, I hear those cherished words, "you're the man now, dog."

Trampopoline!

Getting all sorts of crazy cases in torts this week, mostly related to the question of foreseeability, and "what sort of harm needs to be foreseeable for the defendant to be found negligent?"

Yesterday's discussion: what sort of reasonable precautions should trampoline owners take to keep their trampoline from moving from the front yard to the road, creating an obstruction?   In Thompson v. Kaczinski, the Iowa Supreme Court ruled that this was not the sort of open-and-shut case that could be decided without a jury.    They explained that a reasonable fact-finder could find that the sort of injuries that occurred were within the scope of risk created by leaving a trampoline in the front yard.

One hypothetical that never came up.  What if the defendants had left the trampoline in their back yard?
That might have provided them some shelter, but if they'd decided to start charging the neighborhood kids for access, they'd have had to take some other precautions.

Midterm Post-Mortem

We had the last of our graded midterms this past Monday.  After the exam, most everyone hit a local pub to unwind for a little bit.  At least around me, one ground rule was established: don't talk about the exam.  Talking about how we felt, especially now that it's over, was fine, but I don't think that many (if any) of us wanted to debrief the exam, fact by fact, and compare notes.  That's generally true of law school exams.  They're complicated beasts, with a number of facts that can be argued in a whole host of ways.  It's almost a certainty that someone else will see things I didn't see, and that I saw things that they missed.  So discussing the test after the fact can easily lead to even more freak-out stress than you've already put yourself through while preparing.  It's just not a good idea.


Here's what I'm willing to say about the test.  As time went by, our prof crossed off numbers on the whiteboard to indicate how much time was left.  They progressively went down from 30 to 20 to 10 to 5 to 2 to 1, which was soon followed by "that's it."  That's pretty standard practice in standardized test settings.  Enough other test-givers have done the same thing that I followed suit when I was teaching, letting people know when they had 45, 30, 15, 10, 5, and 2 minutes left.  Nothing fancy, just a soft verbal reminder.

In hindsight, I realize that I could have jazzed it up a bit, maybe by putting a screenshot from Mortal Kombat up on the projector as time expired, then exclaiming in a half-serious voice, "Finish them!"

It would have amused me, but its hard to say how many students would have been in the mood for reference humor after focusing on the exam for several hours.  So it may have been best that I didn't think of this until now.

Minimum Contacts

We've begun our discussion of jurisdiction in Civil Procedure, and I expect that the next month or so will be spent on this subject. It's an important topic, and I'm pretty sure that it'll play a major role on the exam.  So I should learn it.

What happens when someone wants to initiate legal action, in their home state, against an individual who doesn't live in their state?  Can they do that, or do they need to go where the other party lives and sue them there?  What if they want to sue a corporation which is headquartered in another state?

That last question was one of the issues in International Shoe v. Washington, a pretty significant case, in large part because it set forth the idea of minimum contacts. International Shoe was based in St. Louis, had no office in Washington, didn't make any contracts to buy and sell shoes there, and didn't keep any shoes in stock in the state.  However, over a four year period, they did employ about a dozen salespersons, who would rent out rooms, show samples of the company's goods, and take orders, which they would send to the St. Louis office for approval.   The company wasn't paying into the state's unemployment fund, and the state of Washington wanted to collect those taxes.  They sued them in Washington state court, and the shoe company argued that the state didn't have jurisdiction over them, since they had no offices, kept no merchandise on stock, and didn't actually make contracts there. 

The court found otherwise.  They held that the shoe company had had enough contact with the state that they could be sued in Washington state court.  They had had a continuous presence in the state from 1937 to 1941, and the presence of their salespersons had resulted in business for the corporation.  They had benefited from the laws of the state of Washington, and they were therefore bound by certain obligations, namely, the obligation to pay into the state's unemployment fund.  

The question of what constitutes minimum contacts comes up again and again in case law, both when it comes to general and specific jurisdiction. We'll get into that over the next little while.  For now, the closest parallel that I have to this comes from Alex Garland's novel, The Beach. [Yes, the one that was made into a DiCaprio vehicle.  Yes, a lot was lost in translation. Yes, there is a place that really is that gorgeous.  Been there, as in THERE.]

I picked up a copy of the book while backpacking in Asia, and flew through it in a matter of days.  It's a good one, and he gets into the head of the traveler, capturing the thrill of the search for an unknown utopia, as well as the condescension and elitism that can easily accompany it.  In other words, it spoke true to me. 

I haven't thought about it much since, but it immediately came to mind during class, specifically a scene where one of the new arrivals is getting to know a longtime member of the beach community, talking about one thing that these two have in common: travel.

I waited while Keaty finished rolling the joint.

'...So you've done a lot of travelling.

''Sure. Thailand, Indonesia, Mexico, Guatemala, Columbia, Turkey, India and Nepal. Oh, also Pakistan. Sort of. I was in Karachi for three days on a stopover. You count that?''

"Uh-uh."

'Me neither. How about you?'

I shrugged.

'I've never done any of the Americas stuff, or Africa. Just around Asia really. Europe too, I suppose. How about Europe? Does Europe count?'

'Not if you won't count Karachi.'

He lit up. 'Got a favourite?'

Country counting, passport comparing, and swapping stories of favorites.  All stuff that I did, saw others doing, and caught myself slipping into a bit too quickly.  This text got that, and he got it right.

There's a certain authenticity about not counting somewhere if you were just passing through.  I'll count Malaysia, where my trip began and ended, even if the only city I spent time in was Kuala Lumpur (all the more reason to go back).  I bussed through both sides of the country, and spent multiple days and nights in Kuala Lumpur, where I ate, drank, shopped, saw some sights, and wound up having some initially-accidental extended conversations with locals.  I got enough of a feel for the city, and learned enough about the country, to say that I was there. But I won't count China.  I've got a Chinese stamp in my passport, by virtue of going through the airport, but there's no way that I'll claim that I've been to China. 

My test for the US is a bit looser, though.  Right now, my standards are pretty liberal.  They're  based on whether I've sat down and eaten a meal in the state.  Eating and/or spending a night make for more than just passing through, in my book, especially when the prospect of going back isn't going to require a crazy expensive plane flight.  My count currently sits at 33. If I can get to 50 before turning 50, I'll count that as meeting a life goal.

I'll know that the idea of minimum contacts is getting into my head if my test for counting a visit to a country or US State changes.  If I start asking "Can I be sued there?", that number could change (most likely decreasing) without any further activity on my part.

The Hand Formula on the Big Screen

While Fight Club is on my mind, it seems like a good time to introduce you to Judge Learned Hand.  Hand was a second circuit judge, and he's a pretty famous guy in legal circles. If you've been to law school, the name rings out.  One of the things he's famous for is the Hand Theorem, a way of calculating costs and benefits when it comes to negligence.  

The idea, developed in U.S. v. Carroll Towing Company (159 F.2d 169), is that when calculating whether or not a duty has been breached, you should consider three variables: B, P, and L.

• B = the burden of taking the precautions necessary to avoid an accident
• P = the probability of that accident occurring
• L = the amount of harm or damages that would result from that accident

IF B is less than P x L, there is incentive to take precautions and prevent against lawsuits.  After all, you'll pay less to do that than you would pay for the litigation that could arise.

IF B is greater than P x L, then the party involved has some incentive not to meet the standard of care. It will cost less to deal with any litigation that arises from potential accidents than it will to take the precautions that would prevent such accidents.

When I first heard of the Hand Theorem, I had a "I've heard that before" moment.  Googled the Fight Club screenplay, and found that my hunch was correct.  I had heard something very similar, indeed.  Listen and learn.

Tyler Durden on Medical Malpractice

We seem to be on a roll with Torts cases this week.

Earlier in the week, we looked at Matsuyama v. Birnbaum, a relatively recent medical malpractice case from Massachusetts.  Matsuyama was the sort of person who could be at risk for stomach cancer.  He had a history of smoking, and he'd spent twenty-four years living in Korea and Japan, countries where the risk of stomach cancer is recognized [see Ikiru...even if you don't care about stomach cancer, watch the film. It might just change your life] and where endoscopies have been recommended to men of my age as part of a physical.

Anyways, Matsuyama changed primary care providers in 1995.  That July, he went in for a physical examination, and he complained of "heartburn and difficulty breathing associated with eating and lifting."  He was misdiagnosed with gastrointestinal reflux disease, and tests associated with cancer weren't run for several years, in which time he made multiple visits.  The cancer wasn't discovered until May 1999, when it was too late. By October, Matsuyama was dead.

The jury found that the doctor had been negligent in not initially diagnosing Matsuyama with stage two gastric cancer. While Matsuyama's chance of living with a proper diagnosis was less than 50%, he still lost something real, and of value.  He lost a 37.5% chance of survival, which dropped to 0 after his disease went untreated.

They awarded his estate full wrongful death damages, which were multiplied by his chance of survival to arrive at "loss of chance" damages, which were added to damages awarded for painful suffering.  The court went on to explain the loss of chance doctrine, which is generally seen as preferable to the traditional principles of providing compensation when the plaintiff was deprived of more than a 50% chance of recovery.  This modified approach allows for something to be recovered when something of value has been lost: in this case, it was a 3 of 8 shot at living.

Compared to the traditional approaches, this modified approach seems fair, since it allows for compensation proportionate to the loss, providing a middle ground for both plaintiff and defendant.   I'm also glad that this case was decided outside of the jurisdiction of one Tyler Durden, who would likely have taken a less favorable view of things.  What would Judge Durden say?

"On a long enough timeline, everyone's survival rate drops to zero."

Following up with Palsgraf

The answer to yesterday's question was "danger zone."  Thank you, Top Gun, for embedding that phrase into my head.  Turns out that's a technical term in tort law.

In Palsgraf, a man ran to catch a train that was already in motion (insert several iconic scenes and dozens of cliched scenes here), and jumped onboard.  He seemed like he was about to fall, so two guards reached out to steady him.  In the process, the package he was carrying, which was covered in newspaper, fell onto the rails below.

That package contained fireworks, although nothing about the packaging indicated as much.  Fireworks, as they are prone to do, exploded, and some scales on the other end of the railroad platform fell, injuring the plaintiff who was standing on the platform.

The issue: did the railroad company have a duty to protect the plaintiff from this sort of an occurence?

The court said they didn't, because it was outside of the foreseeable zone of risk, in other words, the danger zone.  The guards had no way of knowing that the package contained fireworks, or that it would explode upon impact with the ground, causing the sort of harm that was caused.  So there wasn't a case against them.

Gametime: What caught my eye?

A passage from today's Torts reading (Palsgraf v. Long Island R. R. Co., 162 N.E. 99.) 


"The proposition is this. Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining but this is not a duty to a particular individual because as to him harm might be expected. Harm to some one being the natural result of the act, not only that one alone, but all those in fact injured may complain. We have never, I think, held otherwise." 

Take a guess as to what phrase held my attention, then check your comprehension.  [If you lived with me during my first two years of college, you can probably guess.]

Contracts on the Brain

I've had contracts on my mind lately, in a different way than I'd imagined.

My original plan was to break down contract signings in pro wrestling, look at the various scenarios that arise at these events (third party runs in, attacks one wrestler, signs contract in his stead; wrestler tricks another into signing a contract with a disfavorable stipulation, etc), but that will have to wait.

I noticed this weekend that this class is affecting the things I do in everyday life.  I can't look at a sign-up sheet without thinking in terms of contracts, and I double-take and hesitate on things that would usually be no-brainers.  This is not cool.

This is my brain on law school.

Laying the Smack Down

I'm not going to lie to you.  Reading judicial opinions can get boring after a while.  Fantastical things do come up, like the guy who saw this ad and thought it constituted an offer to sell a Harrier Jet for Pepsi Points (Leonard v. Pepsico, 210 F.3d 88).

But some cases just aren't fun to read.  They're tedious and tiresome, especially when you've gone through four cases in a row and would rather be reading something else.  You find ways to make them interesting, though.  One of my favorite ways to do this is to picture the judges reading their opinions with the bombast of a professional wrestler giving a promo.  So when a judge declares that a point or argument is immaterial (and follows that up with a page of explanation of why that point is beside the point), I picture them following in the footsteps of the Rock, raising their voice and declaring that "it doesn't matter!"

Hey, it beats coffee.

CivPro Midterm

We've got an open-book midterm for Civil Procedure today.  I bought a used book from a student organization before the first week of classes, and the highlighting, circles, and key statements marked match up pretty well with the things my professor has emphasized in class.

If I do well on this test, I'm going to have to give some credit to the Half-Blood Prince.

What Makes An Expert?

We've been spending time in discovery, typically the longest pretrial phase.  During this phase of the law suit, , the parties involved in the suit have to make certain disclosures about the individuals they intend to call as expert witnesses.  That raises the question, "what makes someone an expert?"  Two cases that clarify the requirements for expert witness testimony are Daubert v. Merrell Dow Pharmaceuticals and Kumho Tires v. Carmichael.

The upshot of Daubert is that expert scientific testimony needs to be based on empirical research, following the scientific method.  Experts are allowed to share their opinions in court, but they need to have a basis beyond their degree credentials.  Kumho extends the Daubert ruling to other technical fields of expertise, like tire inspection and engineering.  People with special knowledge can qualify as experts, but they need to show that they base their opinions on recognizable research methods, not just gut knowledge and intuition.

That said, it should go without saying that another person calling you an expert, even if it's your best friend (around 1:30), doesn't make you an expert.

So in the clip above, Mark is correct when he says that he's definitely not an expert.  He doesn't understand women, but his statements about them are broad generalizations based on his experiences and observations, not arrived at through a systematic or  scientific method of study. The real question, though, is would Tommy Wiseau, director of The Room, qualify as an expert on moviemaking?