Posner,+'Cardozo's+Judicial+Technique'

**Previously applied analysis looked at “proximate cause”**: Note: **Cardozo’s analysis** looks at what is **foreseeable**: **no liability if you’re not a foreseeable victim** Cardozo’s statement of facts can be criticized for inaccuracy: Cardozo’s “foreseeability” conclusion is confusing WHY is Cardozo’s judgment here so famous? Reasons: Cardozo relies on rhetoric and a liberal selection and massaging of facts. His opinion “does not come to grips with the issues of policy that are raised by the problem of the unforeseeable plaintiff, and more broadly of the extremely unlikely accident. Indeed, one of the rhetorical skills deployed in the opinion is that of avoiding practical considerations while sounding practical, hardheaded.” **Final note:** suggestion by Noonan and feminist critics that Cardozo showed a lack of empathy for Mrs. Palsgraf has not been sustained – notion that she was at a disadvantage because she was a woman or because she was poor is not substantiated. **Facts**: 16-year-old James Harvey Hynes climbed onto a bulkhead on the side of the railroad’s right-of-way over the Harlem River to dive off of a plank that someone had nailed to it. As he prepared to dive, some high-tension wires running over the springboard fell, hitting Hynes and the plank, which broke. Hynes was swept away, as the wires caused a flash. Hynes died, perhaps from drowning, perhaps from electrocution. **Issue**: Was the railroad liable to Hynes, a trespasser, for negligence in the maintenance of its right-of-way? Cardozo: “The criminal is to go free because the constable has blundered.” · this sentence compresses the entire tradition of legal thought into one phrase, summing up the exclusionary rule (i.e. that evidence illegally seized by the police is inadmissible in a criminal trial, a rule that the court here rejected) · a demonstration of Cardozo’s great writing abilities
 * EXAMPLE 1: CARDOZO’S OPINION IN //PALSGRAF// **
 * was the defendant negligent towards the plaintiff and if so, was that negligence the ‘proximate cause’ of the plaintiff’s injury? (ex. in //Palsgraf//, one might argue that the railroad employee’s negligence was //not// the “proximate cause” because the carrying of the bundle on the platform was an “intervening cause”)
 * no doubt the railroad’s “negligence” //caused// her injury … the question is whether this was significant enough to be considered //the// cause
 * railroad cannot prevent //all// injuries resulting from its negligence
 * railroad cannot prevent //all// negligence on the part of its employees (certain unfairness in holding it liable as //respondent superior//)
 * WAS it even “negligence”?
 * he uses vague and exaggerated terms to make it seem as though the accident was freakish
 * ex. he describes the plaintiff as standing on the platform, not as waiting for a train
 * ex. he makes it seem as though she was far away from the point where the package was dropped
 * note that the jury found that the guards pushing/pulling the passenger onto the train //were// being careless – how far do the results of their carelessness extend where liability is concerned? (ex. if the dropped package landed on another passenger’s toe, there probably //would// have been liability)
 * **Cardozo is a big name**: his reputation draws attention to any case he judges
 * **Cardozo strips down the facts:** his “elliptical statement of facts” reduces the scenario down to what he wants the reader to grasp – the “refreshing” compactness is appealing, and there is great artistry in his omissions (NOTE: he doesn’t even mention the injury for which Mrs. Palsgraf is suing, i.e. the stammer she developed); also, that he omitted so much helps to preclude later judges from criticizing or distinguishing this decision
 * **Cardozo makes up facts** in such a way that adds mystery and intrigue to the story, which in turn supports the conclusion that the accident was not foreseeable
 * **Cardozo is eloquently pedagogic**: he speaks so as to //teach// about the law of torts, and in a style of language that is original ex. inversion of subject/predicate, use of metaphor and aphorism, and bold generalizations
 * **Judge Andrews’ dissent, in its ineptness, lends support to Cardozo’s argument**: Andrews concedes the facts as told by Cardozo, and his argument for the “proximate cause” analysis does little to explain or justify it
 * EXAMPLE 2: CARDOZO’S OPINION IN //HYNES V. NEW YORK CENTRAL R. Co.// **
 * Again, Cardozo spins the facts and uses rhetoric to lead the reader to his point of view: **
 * this time, he is sympathetic to the plaintiff, naming him in the first sentence and later describing the unfortunate outcome in dramatic terms
 * he paraphrases the lower courts’ decisions (against the plaintiff) sarcastically, and again uses original phrasing and word order
 * he presumes that the plank had become part of the railroad’s real estate, and tells the story such that Hynes was not a trespasser
 * the way he tells it, Hynes’ playing on the board didn’t cause his death (it could have happened even if he were below the board), but Cardozo conveniently neglects to acknowledge that the act of trespassing itself was a cause that to the death
 * he (hypocritically?) criticizes lower court for pressing general principles to their logical extreme
 * he gives NO REASON for his conclusion
 * Appellate court judges often seem to slant the facts. Posner prefers accuracy, but is the aesthetic perspective in fact a proper one =for judging appellate opinions? “Maybe the principal function of such opinions is to state a rule clearly, memorable, rather than to state facts accurately, and maybe there is tension between the two functions – as Cardozo himself thought.” **
 * EXAMPLE 3: CARDOZO’S OPINION IN //PEOPLE V. DEFORE//. **