NOTE FROM
ALICE:
In response to my repeating what Catholic's
torts professor told in class, the following e-mail came
in:
As a fellow law student
(at Drake), I appreciated reading your website, but
despite what your Torts professor might have told you
about the Palsgraf case, what you have on it,
and on Justice Cardozo who wrote the majority opinion in
the decision, indicates a considerable misunderstanding.
Your December page on your "thoughts on law"
refers to a "researcher" that your Torts prof
says went to the "real records" and found
things far different from the way Cardozo presented them.
Your Torts prof is either mistaken or intentionally
misleading you. You might check a cite that includes the
entire record of the case, including the entire
transcript of the trial, all of the testimony, including
testimony from the plaintiff herself that there WERE
scales, and it WAS a package of fireworks, not dynamite
used by railroad workers. (And what would railroad
workers have been doing with dynamite in New York City in
1924?) And unlike your page that indicates the woman was
left destitute by the accident, her cross-examination
showed that she was living in a larger and more expensive
apartment after the accident than before it. Judging from
the testimony, there is no reason to believe she had to
work for years to pay the medical bills.
The link is at
http://www.iulaw.indy.indiana.edu/instructors/Wilkins/Torts/record.htm
But beyond that, suggesting that Justice Benjamin Cardozo
was dishonest and was writing an opinion for the
pre-determined purpose of helping the railroad, or
helping industry in general fails to recognize that he
had a very well-deserved reputation as being a
pro-plaintiff jurist. His decision in the 1916 case of MacPherson
v. Buick, [217
N.Y. 382 (1916)], ending the
requirement of privity, and his decision on the U.S.
Supreme Court when he helped to craft the exclusionary
rule in the 1937 Palko [302 U.S. 319] case are both
"little-people" cases which make it almost
impossible to support your conclusion that he was a
dishonest judge looking for ways to deny justice to the
powerless.
Alice's response:
I would not cite Palko as showing Cardozo to be
a champion of "little people." First, the case
is outdated for two reasons: Benton v. Maryland, 395 U.S. 784 (1969), held that double jeopardy
applies to the states thru the 14th Amendment. And, North Carolina v.
Pearce, 395 U.S. 711
(1969), held that, after a successful appeal, a harsher
sentence normally cannot be imposed upon retrial and
conviction. That said, looking back at the Palko
decision itself, some would argue that it stands for the
proposition that the little guy can be punished for a
successful appeal.
And, for the non-lawyers, Black's
definition of "privity":
The relationship between two
contracting parties, each having a legally
recognized interest in the subject matter of the
contract; mutuality of interest <the buyer and
the seller are in privity> -- also termed privity
of contract. horizontal privity.
In commercial law, the legal relationship between
a party and a nonparty who is in relationship to
the party (such as a buyer and a member of the
buyer's family).
vertical privity. In commercial law,
the legal relationship between parties in a
product's chain of distribution (such as a
manufacturer and seller).
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right, CLICK HERE
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