I think the sum total of one and a half weeks of legal methods so far has inspired, mostly, a longing to live in the mid-ninteenth century, or at the very least, to live under its jurisprudence. The conception of law after the coming of the realists has been undoubtedly more just, and certainly more realistic, but it is so incredibly unromantic.

The cases we've studied so far focus mostly on the breakdown of the common law 'master-servant' rules, and the formation of modern product liability and workplace liability law. One of the things that has struck me, although since this isn't a philosophy or literature course we've not focused on it, is how the cases change not what is a conception of law, but a conception of man.

Even the servants in Priestly v. Fowler or other earlier, common law liability cases, are imagined to have a responsibility both to themselves and others, and the ability to make real, albeit hard, choices. Priestly, a servant, is considered to be able to make a choice--get on the cart, whether he thinks it's overloaded or not, or leave his master's service. The latter is a hard choice, of course, but it's considered to be within his power to understand the decision and within his ability to assume the risk. He is a man, "how noble in reason! how infinite in faculty!"[1]

Jump forward one country and several centuries, and see what Judge Frank has made of this man, in Ricketts v. Pennsylvania R. Co.. Ricketts, a man who has benefited from a public education unavailable to Priestly (and was, for that matter, much more likely to be simply literate), has signed a release for injury to his railroad company, with advice of counsel. And yet Judge Frank decides:

"I believe that the courts should now say forthrightly that the judiciary regards the ordinary employee as one who needs and will receive the special protection of the courts when, for a small consideration, he has given a release after an injury. As Mr. Justice Holmes often urged, when an important issue of social policy arises, it should be candidly, not evasively, articulated."

I won't argue that the decision is less than just, or even that it's less than realistic. But how miserable the creature that Franks is addressing, one who does not, and it can be presumed cannot, understand the world in which he has entered, the forces by which he's surrounded, and can't make a decision of certainty vs. risk even if it is offered. I think much of my fondness for the Scalia-brand of textualism is that its view of mankind does not encompass that man. Why is this someone that one would want to be?

Whatever its other merits, realism is revolting to a romantic instinct. Can one imagine what a Cardozo or Learned Hand would have done if faced with the contract of Doctor Faustus? [2] Never mind the fact that the Doctor was one of the most educated men of his time, that he can be assumed to have understood the 'deed of gift' in its language, and that (Hell having had many centuries to ammend it) the contract could be considered to be complete: wouldn't Hand have thundered that no signee could possibly (they being with soul and thus mortal) have comprehended what that clause about 'eternity' meant? Can't it be assumed that Cardozo would find some reason that Mephistopheles, as Faust's 'employer,' warranted safe 'working conditions,' and that these could not be found in a firey furnace?

Ah well, time to get back to the next few cases. One good thing about blogs, for any of you up-and-coming 1L's: they give you a place to file irreverant thoughts like these, and they're good for a bit of daily distraction from the stress of briefing.

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[1] Hamlet Act II, Scene II
[2] For the picky, assume that Faustus is an immigrant and a professor to the City University of New York, and that Mephistopheles has his office in California for sake of diversity jurisdiction.