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

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 First, the case is outdated for two reasons: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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