Agenda for 8th Class
• Common Law
– Review
– Exercise 3. Jones v Union Pacific
• Introduction to Theories of Adjudication
• Next class
– 100, 102, 104. Dworkin & Scalia
– Exercise 5. U.S. v. Diamond
– Writing Assignments -- Group 4.
• Exercise 5. US v Diamond
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Common Law
• Every case involves facts which are different than previous cases
– So common law judge must decide whether new facts fall within rules
established by prior cases (holdings)
• Or whether must create new rule
– E.g. create new exception, as in Thomas v Winchester, which
created “imminently dangerous” exception to Winterbottom v
Wright
– Sometimes, even though new case may seem to fall within rules
established by prior cases, judge may decide to state holding differently
• Loop v Litchfield. “inherently dangerous” requirement rather than
“imminently dangerous” requirement
• Cardozo’s emphasis on foreseeable and probably danger in Thomas
v Winchester
– Sometimes common law judges may decide to ignore or severely
downplay importance of prior case
• Devlin v Smith essentially ignores Loop v Litchfield
– Sometimes judges emphasize facts that were not important in prior
opinion
• Cardozo emphasizes knowledge of defect in Loop v Litchfield
• In deciding, whether to make an exception, modify holding, or ignore prior
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case, judges are usually motivated by sense of justice and/or policy
Jones Exercise
• Kansas trial court held that RR was liable for failure to help trespasser nonnegligently injured by RR
• Appellate court reversed, because no “duty to rescue”
• Questions
– Should law clerk for Kansas Supreme Court advise affirmance or
reversal?
– Is there agreement on common law rule? If not, which should apply?
– Need more facts?
• Authorities
– Beach on Contributory Negligence. Railroad owes duty to trespasser to
mitigate severity of injury. Train which occasioned harm must stop. Cites
Zombee
– Zombee, 29 Md. 420. RR negligent in operating too fast. Also,
employees have duty to remove injured person with proper regard to
safety and humanity (not dump in warehouse)
– Cooley on Torts. Zombee only means that RR subject to duty of care
when its employees took charge of injured person
– Barrows on Negligence. Duty owed only by individuals, not public as a
whole (no “duty to rescue”). Cites Kenney
– Kenney, 70 Mo. 252. RR liable for damage caused by fire only if
negligent in causing fire
Theories of Adjudication
• Formalism
– Legal reasoning is primarily logical reasoning
– Judges should not rely on moral or policy reasoning
• Realism
– Logical reasoning cannot answer many legal questions
– Legal reasoning does and must incorporate moral and policy reasoning
– Legal reasoning similar to legislative reasoning
• Judge is “interstitial legislator”
• Natural Law
– Legal reasoning does and should incorporate unenacted principles
– These principles are part of the legal system and distinct from policy
reasoning
– Different from realism, because relies on moral reasoning, whereas
realism is open to many kinds of policy and pragmatic arguments
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