In Torts, we’re currently working on Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., 916 F.2d 1174. Judge Posner delivered the opinion, and in class, Professor Nockleby offered a critique of it. I thought Judge Posner wrote very lucidly, but Professor Nockleby also makes some great points. The professor challenged us to offer policy arguments against his, as a way of forcing us to learn the arguing skills we must develop as lawyers. I had a few thoughts, and I decided to share them with Judge Posner in an e-mail, which I have excerpted here:
Essentially, Professor Nockleby’s position is as follows:
1. The real issue in the case is, “In the absence of negligence (or proof of negligence), on whom should the presumptive burden of loss caused by the escape of a dangerous substance, acrylonitrile, while in rail transit be cast?”
2. The shipment of acrylonitrile is an abnormally dangerous activity. Therefore, the court should impose strict liability upon the Shipper. (Professor Nockleby cites Rylands, Siegler, and Spano as precedents that argue *in favor* of his position.)
3. Where a loss is created, and created non-negligently, someone must bear the loss, and strict liability is the best vehicle for assigning the loss.
[Here I have questions:
1) Does imposition of strict liability allow for later indemnification (Prof. Nockleby seems to imply that it does, but I’m not sure that’s so clear); and
2) In the instant case, isn’t the state agency which cleaned up the spill (and which charged Indiana Harbor Belt for the cleanup) essentially the way in which the liability is shifted? That is to say, if, as Prof. Nockleby insists, the danger of the case is in the future implications when, rather than a switching station, it is residents who are harmed, isn’t the fact that a government agency can clean up the spill an argument that “the people” have resources which are just as corporate as “big business”? Isn’t the government a sunk transaction cost, and what we’re doing then is simply doing the indemnification?]4. Professor Nockleby insists that, in an abnormally dangerous activity such as shipping a dangerous chemical like acrylonitrile, it should be the agent which has control over the decision to ship which should bear the loss.
5. Professor Nockleby also takes exception to your analogy with people who build houses between runways at O’Hare. My understanding of that illustration was that the people built the houses after the runways were already there, in which case I think it is reasonable to expect people not to buy up land between runways and build houses. If, on the other hand, the houses were there before the runways, we have eminent domain issues.
I don’t expect an e-mail back from Judge Posner, but I invite you, dear readers, to leave comments, particularly if you’re familiar with this case and its interpretations and arguments. Thank you!
[Cross-posted at Law Law Stud]
[lawschool]
[torts]
[strict liability]
[negligence]
[Posner]
Hi Demimasque, fellow 1L. I didn’t know you were in law school as well.
1. I don’t think there’s anything preventing D from seeking indemnification from someone else at a later date, assuming they do it before the statute of limitations run out. They would just bring another suit against the 3rd party. I think Civ Pro rules only require P to bring all claims against D. ie D isn’t required to implead a 3rd party unless he wants to. P is “master of his claims”.
2. Sure, but the government should be able to go after the original tortfeasors for indemnification.
Do not argue policy on the exam. It’s basically a lottery on who the prof likes. It also takes time away from issue spotting and analysis. Focus on IRAC.
A thought on 1L exam strategy. Nito says “It’s basically a lottery” to argue policy. While I agree that the IRAC portion of the exam answer is absolutely essential, how do you pick up those last few points that make the difference between an A- and an A+? I think you need to make a calculated assessment of what the professors’s policy preferences are, based on what is said in class as well as taking a look at the professor’s published articles, and put the cherry on top of the sundae — a few lines of cogent policy analysis consistent with what the professor thinks is important. Of course, this is only if it fits. In fact, the IRAC analysis can be shaped in part by your assessment of what the teacher thinks are more or less important issues. Do not be one dimensional in approaching an exam — as my least favorite teacher in law school from whom I got my best grade once put it “this isn’t high school! You have to psyche out the teacher.” This is also good training for how to think about writing a brief that will convince a judge — understanding the type of argument which he or she might find appealing. But, yes, IRAC and core, basics first. Of course.
Wow, just read that your torts mid-term was multiple choice scantron. That’s harsh. Defeats the purpose of law school. It’s also against the spirit of an ABA rule requiring written exams… You can complain, but I doubt it will do you much good. I suppose the prof could rationalize that you are writing the 2 case briefs. I also can’t believe he had you brief a case as an exam question. That serves no purpose whatsoever. I think it would be really mean if he switched to an essay/IRAC format for the final, which is what every law school is doing. I bet if he did that, half the class would be caught like deer in headlights. Nasty…
Lex, yes agreed that if after nailing the IRAC portion, psyching out the prof would be a huge bonus. I’ve been practicing exams since the start of the semester though, and have found that I barely have enough time to nail all the issues, let alone including a lengthy policy discussion. I’ll find out soon enough. Finals are upon us in 3 weeks and counting.
Don’t worry though Lex, I think I’ve picked up the main policy bent of the profs. Civ Pro = judicial efficiency, K’s = Law & Econ school adherent, Con Law = argue both sides, moderate social liberal, but Republican in name, Torts = HEAVY IRAC, argue both sides.
Nito, agreed not “lengthy policy discussion” — just a few lines. There isn’t time for more. As to the exam format, you just give the guy back what he wants, how he wants it. The prof is holding all the cards, and he is dealing, so you have to do your best since it is “dealer’s choice”. Can’t worry about that. Just deal with what is.
Amen to that Lex.
Thanks for the tips, Lex! Nito, yes, I’m a 1L over at Loyola Law School (Los angeles). My semester classes are Torts and Crim, both of which are taught by left-of-center instructors, but both of whom do not fit the stereotype of trying to shove their views down their students’ throats. I guess it’s something about law school that increases the professionalism. Heck, there was much more eye-rolling and impatient groaning from the Leftish girl with the Hippy name after the discussion of the case, who believed that American Cyanamid should be made to pay, and pay hard, because it was obviously evil. I think even the professor was both amused and put off by that.
The Torts midterm’s writing section wasn’t full briefing. It was essentially issue spotting, which made it easier to skim. I still didn’t have quite enough time, though. As for the multiple choice portion, I think LLS is trying to get its students to be better prepared for the California Bar Exam, which is multiple-choice-heavy.
I fear Crim. When she’s lecturing, everything seems to make sense. Then when she gives the practice exam, everything falls apart because we have no clue what she’s looking for, and even when we think we know, it turns out to be somethign completely different, especially on the multiple-choice portion. On the plus side, that may mean a lower curve.
I have Torts and K’s this semester. So don’t really have any input for Crim. Stick to IRAC though. I’m gunning for 2 A’s and 2 B’s which in theory should give me a 3.5. Anything above that would be icing on the cake.
Arguing from a profound ignorance of the legal concepts involved and without even clear understanding of the terminology (what the hell is a tortfeasors? Oh, wait I can google it.) I can nevertheless offer an argument based on economic practicality.
There is a huge difference between legal negligence and routine best-practice. The two concept function as poles of behavior to which organizations gravitate towards depending on their incentives. If the economic incentive is merely to be found not negligent, then the organization will allow its practices to drift as close to the line of negligence as it can. If the incentive is configured such that the organization will pay for all bad outcomes regardless, then it will drift towards best-practices in an attempt to avoid any possible loss.
The rail company has the most control over the decisions, both long and short term, that most influence whether an accident will occur. Forcing the rail company to pay for cleanup, even if they were not not legally negligent will lead to the routine use of best-practice by the rail company which will make future accidents less likely. In turn, this will increase the cost of shipping hazardous materials which will create and incentive for the manufacture to find safer alternatives.
The absolute worse policy is to have the state pay for the clean up. In that case, neither of the private actors has any incentive to avoid accidents or to find alternatives.
This non-lawyer says you first need to run your spell checker over the post before analyzing it to death.