The Five Types of Argument Redux
Before looking at this cross-type conflict, I should note some advocates and judges contend that only one type of argument, the text argument, is legitimate or “foundational.”2 Under this theory of advocacy, one type fits all. On the other hand, pluralists such as Justice Felix Frankfurter teach that “there is hardly a question of any real difficulty before the Court that does not entail more than one so-called principle.”3 So, if the text argument is not a “silver bullet” that invariably shoots down the other four types, how is the persuasiveness of the several types determined?
Professor Huhn answers that “[t]he standard of persuasiveness is found in the values that underlie each of the different types of legal argument….[E]ach type of argument serves a different fundamental value in our system of laws.” Values underpin the types:
This brings us to the common intertype conflict between text and precedent on one side and public policy on the other. Often, these are the “cases of real difficulty,” the hard cases that sometimes make bad law. Perhaps there is no better example than the case that every law student knows and most lawyers remember: Palsgraf v. The Long Island R.R. Co., 248 N.Y. 339 (1928).5
Although Justice Cardozo’s statement of the facts is more famous, the version in Justice Andrews’s dissent is more succinct:
On these sparse facts, how did Justice Cardozo decide whether the Long Island Railroad should be legally responsible to intending passenger Palsgraf?
For Cardozo, the text and precedent type arguments persuaded. He cited 21 cases, 9 scholarly treatises, and 2 law review articles to support his holding that there is no liability without foreseeability.7 Valuing objectivity and stability in the law, Cardozo privileged logical consistency and symmetry.
Although Cardozo cited an array of texts and precedents, Justice Andrews and two other justices were not persuaded. They countered the texts and precedents with the public policy type argument. For the dissenters, the issue was proximate cause. Andrews frankly admitted that the scope of liability is not measured with geometric logic:
Applying his sense of justice, Andrews found: “The act upon which defendant’s liability rests is knocking an apparently harmless package onto the platform. The act was negligent. For its proximate consequences the defendant is liable.”
Tracing the series of events far enough to include Helen Palsgraf does indeed seem just, especially when weighing other facts about the case, facts that Cardozo omitted:9 Palsgraf was a 43-year-old single parent with three children who was working two jobs; her court fees and doctors bills were more than half her yearly income of $416; the defendant railroad, on the other hand, had assets of $114 million and carried 80 million passengers a year.
I wonder if counsel’s public policy argument would have persuaded Cardozo if he had argued on the basis of the esteemed justice’s landmark decision in MacPherson v. Buick Motor Co.?13 There, Cardozo held that manufacturers of defective automobiles are liable to ultimate buyers who are injured by them. In MacPherson, Cardozo rejected a long line of precedent and venerable treatises. He said he was persuaded by the public policy argument:
Perhaps, 12 years after Macpherson, Cardozo could have been persuaded to find that American railroads, like auto manufacturers, also were subject to the imminent danger principle. After all, in the year Palsgraf was injured, railroads killed 6,617 persons and injured 143,739.15 Maybe Cardozo would have followed his own precedent to promote the human values underpinning Palsgraf’s public policy argument. Had Cardozo embraced those values again, he could have joined the overwhelming majority who found in favor of Palsgraf.
1 Wilson R. Huhn, The Five Types of Legal Argument (2002).
2 Id. at 145-150 (discussing “originalists” such as Justice Scalia and Robert Bork).
3 Id. at 146, n. 340 (quoting Felix Frankfurter, Of Law and Men 43 (1956)).
4 Id. at 152.
5 See generally William H. Manz, The Palsgraf Case: Courts, Law, and Society in 1920s New York (2005).
6 Palsgraf v. The Long Island R.R. Co., 248 N.Y. 339, 347 (1928).
7 The full story of Cardozo’s handling of the case, including the professional, social, and political realities that influenced him are brilliantly recounted in a provocative new book: Robert W. Benson, The Interpretation Game: How Judges and Lawyers Make the Law (2008) (Chapter 7: “How Case Precedents Get Their Meaning: Palsgraf v. Long Island Railroad.”) Full disclosure: Bob Benson is a friend and colleague at Loyola Law School. The company he keeps notwithstanding, Bob’s book is an important contribution to legal education.
8 Palsgraf, 248 N.Y. at 352.
9 Benson, supra note 7, at 133 (citing facts from John Noonan, “The Passengers of Palsgraf,” in Persons and Masks in the Law (2d ed. 2002)).
10 Id. at 136; Huhn, supra note 1, at 150.
11 Palsgraf v. Long Island R. Co., 225 N.Y.S. 412 (1927) (quoting the sole question submitted to the jury).
12 Id. at 414.
13 MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916).
14 Id. at 391.
15 Benson, supra note 7, at 133 (quoting statistics from John Noonan’s “The Passengers of Palsgraf”).