Jacob & Youngs v. Kent

Why are you linking to Westlaw, a proprietary commercial service? It is only available to readers who can pay. You could and should refer to the document in a place where anyone can read it, where it is not presented in a technical environment that requires a browser that spies on its users, and where no proprietary control of information is exerted. If you can find no such place for a source, make one. This is public information. You are writing on the public web. Don't subsidize the parasites.

has always stayed with me. A young man is electrocuted while standing on an improvised diving board extending over the Harlem River. The board is planted in the ground on the shore, which is owned by the railroad.

Perhaps permanent encroachment on property rights is not the same as immaterial variances in contract performance?

This was where: (1) you conceded my point; (2) you had a chance to consider the differences between creativity in writing and creativity in legal thinking; (3) you didn't admit (1) and you didn't do (2).

Nonetheless, he did justice in Hynes, just as Holmes did injustice, in equally dramatic fashion, a year later with similar facts in United Zinc & Chemical Company v. Britt. Cardozo got the case right, and he did it in style. I still maintain that this is a display of the nerve and talent that I hope to develop.

An improvement, no doubt. But a defense that doesn't defend, discussing sources you link from a place that most of your readers can't reach.

On Creative Lawyering

Introduction

Hynes v. New York Central Railroad Co.

Conceding Kent

Defending Hynes

Why put a URL here, when you could have made the case name below a link to the case, that people could click if they needed or wanted to? If you dislike URL-shortening as much as I do, you won't patronize the surveillance merchant by clicking the shortened link anyway. It doesn't help the reader to meet a short ugly squawk instead of a longer ugly squawk; the link is unobtrusively helpful, as links should be.

Seems to me you've bought the Cardozo myth-making hook line and sinker. He can make even the simplest thing look difficult, with the aid of law professors who like to pretend that judges who sound like them are better than judges who don't. But are we supposed to be naive enough to believe that for the previous thousand years the builder would have had to unbuild the house for using the wrong brand of pipe? Is this way of getting the railroad to pay any better than letting the jury do the work? Or taking some more formalist approach (like, say, "attractive nuisance" doctrine) to making the railroad pay for the accidents it brings to life?

So in the end, it seems to me, your desire to be just is neither the desire to be Cardozo, nor the desire not to be Cardozo. But probably your desire to be just is more than a desire to sound just to law professors.

So far as the agonizing over whether you will be horribly compromised by taking a job watching law firm employees work goes, I think it would be hard to gin up any agony of my own, or of any reader's own. It's hard to see how anybody could object. If you want to make money, of course, there are more effective ways to make it. But there's little danger of your being seduced into a way of life you don't want to live, particularly because wherever you work isn't likely to have any job to offer you even if you wanted to take one.

Considered as an essay, this draft could use a unifying idea, one of interest to the reader as well as to you, for you to develop together. What, if you had to put it in a sentence, is the idea being developed in this draft? How could it be made more accessible and less idiosyncratic, in the sense of applying primarily to yourself, for the reader to participate in developing, in her own mind?

Reflections on Where I Am and Where I'm Going

Right now, when I think about my legal career, it is easier to consider what kind of lawyer I want to avoid becoming. Law students have been described in this class as “risk averse control freaks.” That description is completely appropriate for me, but, like the rest of the class, it doesn’t sum up my entire personality. My goal is to avoid living up to the stereotype.

What I worry about most is that risk aversion can lead to complacency. Working on boring cases, for powerful, vested interests, with boring colleagues, for reliable but ultimately mediocre sums would not ultimately make me proud of myself. To my credit, it would probably be unsustainable. I would eventually say or do something reckless, or just perform poorly, and get fired.

What I do want

I haven’t yet figured out what exactly I want to do, or how exactly I want to do it. What I know is that I want to feel connected to the people I represent. I’ve come across a few cases, two of which I discuss below, that have been bouncing around in my mind as examples of legal reasoning with an actual regard for its consequences. My feeling right now is that if I can find and maintain that kind of empathy, legal creativity, a concept we’ve discussed at length, will take care of itself.

Hynes v. New York Central Railroad Co.

One of the first cases I read at law school, Hynes v. New York Central Railroad Co. has always stayed with me. A young man is electrocuted while standing on an improvised diving board extending over the Harlem River. The board is planted in the ground on the shore, which is owned by the railroad.

Cardozo explains that one interpretation of the law would treat the boy as a trespasser and deny his mother any recovery. He tells us that “the conclusion is defended with much subtlety of reasoning.” He then tells us that “Rights and duties in systems of living law are not built upon such quicksands,” Citing “considerations of analogy, of convenience, of policy, and of justice,” Cardozo lays down the law and holds the railroad liable.

Jacobs & Young v. Kent

Another Cardozo case, this one from my contracts course, Jacobs & Young v. Kent, strikes me as similar in its approach. A construction contract stated that “all wrought iron pipe must be well galvanized, lap welded pipe of the grade known as ‘standard pipe’ of a Reading manufacture.” Mr. Kent refused to pay his contractor for the work when he learned that the pipes in his building were made by another company, though identical in quality.

Kent argued that he was entitled to the cost of completion—the expense of tearing out all the pipes in the building and replacing them. Cardozo, however, held that he was only entitled to the difference in value between his pipes and Reading brand pipes—that is, nothing.

According to Cardozo, “Intention not otherwise revealed may be presumed to hold in contemplation the reasonable and the probable,” and “that an omission, both trivial and innocent, will sometimes be atoned for by allowance of the resulting damage, and will not always be the breach of a condition to be followed by a forfeiture.”

In both cases, if the Court had applied the literal letter of the law, the result would have been unjust. What is most interesting to me is that he probably could have come to the same ruling without the bold gestures. In Hynes, Cardozo doesn’t just label the boy a licensee on the railroad’s property entitled to certain protections. Instead, he remained a bather in a public river, entitled to all the rights of citizens in public places.

In Kent, the contract specifies “pipe of the grade known as,” not pipe of a given brand. But, instead of just reading Mr. Kent’s preference out of the contract, he established two things:

1. When contracting with an insane person, the promisor does not have to read his mind. 2. When literal application of the contract will lead to absurdity, throw it out.

Cardozo was able to do justice on its own terms, and that is what I most admire. In both cases he had the nerve and the talent to make it work. Moving forward, I want to find ways to develop my own talents without losing my sense of justice.

A Practical Concern

We’ve talked at length about the job hunt, especially as it relates to law firms, and also as it relates to “doing well by doing good.” This summer I will be working for the local ACLU affiliate in Indiana. Next summer, I’d like to make some money. I am quite tempted to go to EIP and take a summer job with a firm. Law school is expensive enough that passing up the three thousand dollars a week that I could make for a summer seems difficult. As I noted above, the money isn’t so good in the long run that it would make corporate law a worthwhile career, but as a student, doing it for a summer feels like a good idea.

The second reason I’m tempted to do this is that I could be completely wrong about what working at a law firm is like. I have a strong feeling that I’m not, but I might be better positioned to make an informed decision about my career if I spent a few weeks seeing how a law firm works firsthand.

My concern is that if I do end up taking a summer firm job, I’ll get seduced by the money and the boat trips and lose sight of the good things I’ve discussed above. I have enough confidence in myself that I don’t think this will happen, but any advice about the matter would be appreciated.

-- By FrancisWhite - 24 Feb 2013