| | |
|
FrancisWhiteFirstPaper 4 - 21 Jun 2013 - Main.EbenMoglen
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
On Creative Lawyering | | | 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. | >
> | One of the first cases I read at law school, Hynes v. New York Central Railroad Co.
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. | | | 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. | | | Similarly, in Pile v. Pedrick, a court ordered the destruction of a wall whose underground foundation intruded upon between one and one half and one and five eighths of an inch of a neighboring property. However, I should have recognized that these cases are the outliers, not Kent. | |
>
> | Perhaps permanent
encroachment on property rights is not the same as immaterial
variances in contract performance?
| | | Defending Hynes
Hynes, however, still strikes me as an important case, though more for its style than its substance. I do not mean to suggest that what Hynes does is independent from attractive nuisance doctrine. A court encountering a similar fact pattern after Hynes could read the case as adopting a broad attractive nuisance doctrine in practice, without using those particular words. Hynes really seems to be a sweeping endorsement of attractive nuisance without applying the formal label. What makes the case important is that it applies the doctrine aggressively, and that it does so in terms relating to the rights of the boy in a just legal system, rather than the formal rights and duties of a property owner. The style became substantive.
Undeniably, much of the appeal of Hynes is in the boldness of its prose. I read Hynes in Legal Methods after a series of formalistic tort cases denying recovery to mangled or dead plaintiffs and their families. The invocation of “rights and duties in systems of living law” sounded like a voice from the desert. | |
<
< | Perhaps Cardozo was more of a creative writer than a creative lawyer. 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. | >
> | Perhaps Cardozo was more of a creative writer than a creative lawyer.
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.
| | |
|
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |