
When you're a huge nerd like me, you not only read court opinions for school, but you also get really excited to read those court opinions when it's written by a judge that you like to read. There are a few judges I *love* to read, even if I don't agree with everything they write. Judge Posner from the 7th Circuit Court of Appeals is one of those. The latest opinion we read from him [opens with](https://law.justia.com/cases/federal/appellate-courts/F3/17/209/566491/), "Richard Welge, forty-something but young in spirit, loves to sprinkle peanuts on his ice cream sundaes." And continues later:

> Even so, the defendants point out, it is always possible that the jar was damaged while it was sitting unattended on the top of the refrigerator, in which event they are not responsible. Only if it had been securely under lock and key when not being used could the plaintiff and Karen Godfrey be certain that nothing happened to damage it after she brought it home. That is true--there are no metaphysical certainties--but it leads nowhere. Elves may have played ninepins with the jar of peanuts while Welge and Godfrey were sleeping; but elves could remove a jar of peanuts from a locked cupboard. The plaintiff in a products liability suit is not required to exclude every possibility, however fantastic or remote, that the defect which led to the accident was caused by someone other than one of the defendants.

I mean, come on. Inject this into my veins.

Another fascinating thing about reading opinions while studying how one area of law has developed is seeing how judge's concurring and dissenting opinions in one case end up being the rationale for the majority in a later case. [Justice William Brennan ](https://en.wikipedia.org/wiki/William_J._Brennan_Jr.) of the Supreme Court was notorious for this in personal jurisdiction cases.

Here's a great example from my readings this week.

We're learning about strict products liability law, and the big crux of this area of tort law is that manufacturers and distributers don't have to be negligent (i.e. do anything "wrong" necessarily) for someone to recover against them. They are held strictly liable.

In 1944, strict products liability wasn't really a thing, but a justice on the California Supreme Court *really* wanted it to be a thing. In *Escola v. Coco Cola Bottling Co.*, [Justice Rodger Traynor](https://en.wikipedia.org/wiki/Roger_J._Traynor) wrote a concurring opinion advocating for strict products liability. He wrote:

> In my opinion, it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings.

And here Justice Traynor is again in 1963, almost *twenty years later*, writing the same thing in the majority opinion in *Greenman v. Yuba Power Products, Inc.*, thereby creating strict products liability for tort actions in California:

> A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.

And just like that, strict products liability is birthed into existence. I love finding stuff like this and connecting the dots.

Concurring opinions

After a run this morning, my friend told me about Linkin Park’s new song, “[Heavy is the Crown](https://genius.com/Linkin-park-heavy-is-the-crown-lyrics).” Apparently they’re making a comeback? I never really got into them, so I don’t know.

But.

I listened to the song on the way home. It gave me a bit of a headache (why are they yelling so much?) but the lyrics were great.

> This is what you asked for, heavy is the crown /
> Fire in the sunrise, ashes rainin' down /
> Try to hold it in, but it keeps bleedin' out /
> This is what you asked for, heavy is the / 
> Heavy is the crown

[No one really seems to know](https://www.reddit.com/r/LinkinPark/comments/1fogrhh/what_do_you_think_the_lyrics_to_heavy_is_the/) exactly what the lyrics are referring to. Some say it’s a bash on critics saying the band was over, others say it’s a stab at politicians: “I think it's aimed much more at world leaders in general, politicians playing the politics 'game'. This is what you asked for, you're in a position of power, so deal with all the shit. It's not nice, heavy is the crown, but you put yourself there so do something about it.”

Although I don’t analogize that reasoning to the political sphere, I had the same interpretation about the lyrics. It made me think about people who want something really bad and them complain about it when they get it.

I’m reminding myself of this now when I fall into a victim mindset about law school. For the most part, I’m loving all of the reading and class time. But it’s a lot. And it’s stressful. So much of my future—so they say—rests on my first year. I want to do well so I can get a good job, and because of that, I add even more pressure on myself to perform, feeling like this year is all or nothing.

But sometimes I wonder, is it worth it? When I’m falling into the mindset of, “There’s so much reading,” or, “I’m so busy,” or, “Why do we have to do this extra class?” I’ll try to remind myself, “*this is what you asked for...*”

*I* took the LSAT, *I* wrote the application essay, *I* paid all the money for textbooks. This is, quite literally, what *I* asked for.

Heavy is the crown, but if I don’t want to wear it, I can always just take it off.

Heavy is the Crown


One of the reasons I went to law school was because of Oliver Wendell Holmes, Jr. It’s not like a had a conversation with him...obviously. He’s long dead. But his works, ideas, and life are not!

I read [Oliver Wendell Holmes: A Life in War Law and Ideas](https://www.dltn.io/posts/oliver-wendell-holmes-a-life-stephen-budiansky) a while ago, and the passion and zest Holmes had for the law, logical thinking, and clear writing was inspirational to me. I was fascinated with his work, I thought maybe I could *do* what he did. (Be a lawyer, that is.)

I went into school liking the book so much that Holmes felt like my “mentor” or at least a big inspiration for why I was there, and that was special. I held him in high regard.

So I was ecstatic when we were assigned to read an excerpt in Torts from his book, *The Common Law*. I was even more excited when a case he wrote the opinion for was in our torts book. But...then I read the case, and we talked about it in class, and my professor kind of dissed on him. We talked about it afterwards in his office hours, and he said from the opinion, it was clear that Holmes had *never* driven a car—which he probably hadn’t—yet was creating a rule of law that required people who came to a railroad track crossing to get out of their car and look to make sure no train was coming before they crossed in their car. That’s...ridiculous.

After our conversation, I looked in the biography to see what the author said about that opinion, and I now agree. Here’s what the author wrote:

> His zeal to write into the law his draconian views about risk led him to render one of his other most notoriously bad decisions on the Supreme Court...Holmes held that a railroad was not at fault in a fatal grade-crossing accident where the view of the tracks was obstructed to an approaching driver. Showing if nothing else that he had never learned to drive himself, Holmes ruled as a matter of law that it was a driver's duty to stop, get out of his car, and look down the tracks to see if a train was coming.
>
> [...] 
>
> [Louis] Brandeis thought the Court had had no business taking on these cases in the first place and that Holmes had pressed his colleagues to do so mainly because he was "incorrigible when there is an opportunity of curbing the power and province of a jury." 
> 
> [...] 
>  
> While in so many areas of the law Holmes would prove decades ahead of his time, his Darwinian attitudes toward injury cases seemed at times almost a throwback to the nineteenth century—holding firm to a conception of tort law that was rapidly being swept aside by the very kind of nuanced balancing tests and apportionment of responsibility between the parties that he otherwise so zealously advanced.

I thought this was really interesting because it shows:

1. How not-closely I read biographies. I read parts closely but other parts not, but I don’t remember any mention of this case in the book. (But I did apparently think it was ridiculous when I read it because I wrote marginalia that said, “This is ridiculous lol”.) And;\

2. How not everyone we admire from history was “perfect.” I struggle with this. After I read a book about Truman or Lincoln or Adams or Jefferson, I’m enthralled with who they were (or, at least who the book portrayed them to be), that I usually remember all of the good quotes and cool things that they did and forget about the not-so-good things they did decisions they made. I don’t think there’s anything wrong about admiring people from history, but I’m reminded of being a bit more cautious in the people I choose to model my life and career after.

This post didn’t really have a point, but I was excited to see how my love of learning and history that I’ve poured myself into the last three years is finally converging into something useful, I guess? It’s fun to see the people and ideas and history I’ve learned about appear in contexts other than a book I’m reading on my back porch.


Justice Holmes

Last year on the podcast, Jerry Colonna said something that deeply resonated with me: how are you complicit in creating the conditions you say you don’t want?

You don’t want to be stressed? Why do you keep leaving important projects and tasks until the last minute?

You don’t want to be tired? Why do you keep starting Netflix shows at 10p.m.?

You don’t want to be so unhealthy? Why do you keep eating Taco Bell three times a week?

None of those questions have easy answers, but when you ask yourself that question and then evaluate every area of your life that you’re not happy with, I’m sureyou might find a few things that are creating—or helping to create—the conditions you say you’re not happy with.

I see this almost every day at school. I overhear people say how they’re so confused in Contracts or Civil Procedure, and then I see them online shopping during class or bragging (I guess?) about how they were too busy over the weekend to do the reading.

Like…you’re confused because you’re not paying attention and aren’t doing the reading. That is not a hard conclusion to draw; it’s a very simple cause and effect pattern. Those people are creating their confusion and then complaining about it! I simply don’t understand.

It’s like if you stabbed yourself in the hand everyday and then went around going, “Man my hand hurts really bad. This is super annoying because it’s making it harder to do other stuff in life.” Like, okay, stop stabbing your hand. Problem solved!

I’m not saying that just because you’re struggling or are unhappy in a certain area in your life that it’s 100% your fault, because that’s just simply not true. But, I bet there are a few things—a good amount of things maybe—that you do cause, or at least add to the causing, through your behavior somehow. I know I have those things for me.

**Ask yourself:** How am I complicit in creating the conditions I say I don’t want?

**And then ask:** What am I going to do about it?


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