Fletcher v. Aberdeen Blind man tumbles into unbarricaded ditch and is injured. Was he negligent? –How useful to examine his burden of prevention? Would due care would demand of him that he not walk on the street at all? Perhaps better cane use, guide dog, companion would identify ditch before plunge. Perhaps he ought to be able to distinguish between parking strip and sidewalk. One claim: Burden of prevention not relevant so long as he’s careful and cane-using, as is custom among the blind. To require more would make him “unequal” to everyone else. –Court’s charge to jury: He should do what an ordinary (hence sighted) reasonable man in his circumstance would do. One claim: There’s a difference between sighted person as default, and starting with blind reasonable person to begin with. Better to use latter?

Views of the case “Cost-benefit analysis” –Cheaper for blind man to get companion or city to ensure barricade in place? Answer suggests on whom to impose the burden, and therefore the liability. [Does the equation use this man for this barricade, or all blind people likely to encounter all barricadable situations within the jurisdiction?] (Of course, can imagine respective substitutes for barricades and companions; idea is to compare cheapest solutions that still work.) “Equality” –A “rights-based” analysis. Burden of companion not just literal cost of same. Associated stigma and fact of inequality. Are these really any different from each another? –Can we express each in terms of the other?

Alternative approaches (DuK) What MS did: “from the inside out” presentation. Contextualized description of the case, and then presentation of how case should come out, without imposing an answer. Instead, drawn into an elaborate discussion of the pros and cons of particular outcomes of case – lots of arguments; purpose of discussion is to reflect on what’s a “fair” decision taking into account respective consequences.

Alternative approaches (DuK) What DuK will do: “from the outside in” presentation. Show that a given case is like “all the other cases.” One can thus do an analytic exercise as much as an exercise in fairness. What is an appellate opinion but an exercise of judicial rule/lawmaking? Judge is not applying rule, but making one. In our case, stating overall rule for blind people vis-à-vis city. (Could imagine administrative agency doing just the same thing – court’s holding could be just as powerful.)

How do judges make rules? So: DuK emphasizes the techniques that judges use (or that are used upon them) to generate and justify the rules that are the cases they decide. Useful to examine who the rulemakers – the “rulers” – are?

How do judges make rules? For unintentional torts: strict liability or negligence? Brown v. Kendall says latter. For negligence: subjective or objective standard? Courts say latter. For objective standard: a whole series of subsidiary, related questions around how to interpret standard for particular classes of people in different positions (including legal position – plaintiff’s contributory negligence or defendant’s negligence?). (See Prosser) –Physical attributes –Mental capacity –Age

“What rule to adopt?” Inside-out view has a million-factor set of facts and impressions to go on. Outside-in view says there are a limited set of arguments that end up being played, re- played, and passed around like Xmas fruitcakes. Just get a handle on the arguments, and one can understand what’s going on – and effectively argue oneself. –One can end up looking in Prosser for the rule – and pithy justification, which fits into a pre-existing category (“rights” argument, or “fault” argument) – in pretty much any case? –So the process of legal argument is one in which lawyers bandy these pre-packaged arguments back and forth.

Types of arguments System values –“This rule is easy to administer” –Stare decisis –Intepreting law, not making new law Substantive values –“rights” arguments –“cost/benefit analysis” Figure out which types simply happen to appeal most to a particular court? Since every argument has a flip, a lawyer can end up adopting any type of argument regardless of which side of the case he or she is on.

Flips Rights argument –“I have a right to live in the world” (blind) “only if you pay for what you break” (clumsy) –Fletcher v. Aberdeen (apply prosser) Blind person competently walks into china shop yet still destroys a bunch of merchandise. (merchant seeks flip) Fault argument –“No liability without fault” “you pay for what you break” – as between two innocents, the person who caused the injury should pay Cost-benefit analysis –Differing calculations Administrability vs. flexibility The same judge can use “column A” for one issue, then “column B” for the next!

What is it to be a good judge? DuK: Handle a role conflict in a way that’s ethical – heroic more than crummy. Conflict between “just applying the law” and “making the law just.”

What is a lawyer’s project? What is a judge’s project? What is a law student’s project?