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> | This is a revision corrected to link to publicly available sources. For Eben’s comments, see the previous version. |
| | On Creative Lawyering |
| | Hynes v. New York Central Railroad Co. |
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< | 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. |
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> | 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. |
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< | Jacobs & Young v. Kent |
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> | Jacob & Youngs v. Kent |
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< | 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. |
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> | Another Cardozo case, this one from my contracts course, Jacob & Youngs 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. |
| | In my first draft, I argued that in both cases, if the Court had applied the literal letter of the law, the result would have been unjust. Eben’s argues that it is naive to expect that a court would ordinarily order the destruction of the house in a situation like Kent, and I must concede that he is correct. |
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< | Prior to writing my first draft, I had encountered cases where courts did order wasteful destruction of property while rigidly enforcing either the terms of a contract or a property right. In American Standard, Inc. v. Schectman, a court awarded $110,500 as cost-of-completion damages to restore a plot of land to its earlier condition, though the unfinished work would have added only $3000 in value to the property. The court also cites Kent and treats it as inapplicable.
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? |
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> | Prior to writing my first draft, I had encountered cases where courts did order wasteful destruction of property while rigidly enforcing either the terms of a contract or a property right. In American Standard, Inc. v. Schectman (scroll down for case), a court awarded $110,500 as cost-of-completion damages to restore a plot of land to its earlier condition, though the unfinished work would have added only $3000 in value to the property. The court also cites Kent and treats it as inapplicable. |
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> | Similarly, in Pile v. Pedrick (see page 23), 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. |
| | Defending Hynes |
| | Perhaps Cardozo was more of a creative writer than a creative lawyer. |
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< |
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.
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> | 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. |
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-- By FrancisWhite - 24 Feb 2013
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