Strauss_Elements_Fall 2013
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1.    Intro – State v Post
a.    General – abolitionists argue slavery unconstitutional cause NJ Constitution says “all men free and independent
b.    Ruled against abolitionist
c.     Abolitionist counter:
o   Trying to write opinion that came out the other way.
o   Take it at face value – and it didn't have to be explicit because slavery wasn't big deal.
o   Not concerned slaves put out on street, since claims could still survive.
o   Decision in MA supports abolition.
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d.    Issues
                                     i.     Did slavery exist legally in NJ
1.    Marriage analogy – exists, though perhaps not legally.
2.    Separating institutions like marriage and slavery and whether they need to be legally recognized “to exist”.
a.    Public opinion?
b.    Morality?
c.     Society functioning to its existence? (Circular)
                                   ii.     Did NJ constitution abolish slavery?
1.    Wouldn't they have used more explicit language?
a.    Slavery on its way to being abolished, so maybe didn't need to fight to get it in
b.    Slavery very small issue
e.    Masters absolved from maintaining slaves and on their own. Can they sue?
                                     i.     Earning power diminished due to master enslaving him.
                                   ii.     “All writs and actions and claims continue as if no change” so abolition does not change slave's claim.
f.      Framers on court – maybe they didn't resolve it and wanted to settle and punt it to the court. Or maybe they didn't discuss at the time.
g.    Hyper-literal interpretation leading to no legal effect, since nobody really “free and independent”. – slippery slope, can't be any legal language.
h.    Other states
                                     i.     MA v VA. MA abolished, VA left intact. MA is more similar to NJ.
i.       Self-congralatory tone
j.      Fair to criticize fakeness of anti-slavery opinion? Why not just make the decision then?
                                     i.     This was the better opinion in their view
2.    Precedence, Realism, Formalism
a.    Winterbottom v Wright
                                     i.           Facts – Chain of D, PG, and P, with faulty carriage. Is D liable to P?
                                   ii.           Rule – Privity
                                 iii.           P could have contracted with PG.
1.    Not realistic for time period, drivers illiterate.
                                iv.           With so many drivers, don't know who's really at fault and if it's really manufacturer
                                  v.           Levy v Langridge
1.    D sold gun to P's father, defective, hurt P. D liable.
2.    Not the same as Winterbottom  since son wasn't able to purchase gun or make contract himself.
3.    Realistically contract between son and gun seller
a.    D was keeping in good condition ultimately for benefit of P. intermediary was notional.
b.    D in Winterbottom only obligat
rently dangerous.
                                   ii.           Blew up right away – stronger case that it was manufacturers fault.
g.    Macpherson v Buick Motor Company
                                     i.           Facts – D….. Sold to retail dealer…. Sold to P. While P driving, car collapsed and he got hurt. One wheel was defective – not made by D, but bought from another manufacturer. Evidence that wheel defects could have been reasonably inspected and discovered, but inspection skipped. No claim that D knew of defect.
                                   ii.           Rule of foreseeability replacing Privity of K rule.
                                 iii.           Pretends not really changing the rule – following Thomas v Winchester.
1.    Loop – emphasized omitted facts, manufacturer could foresee that buyer knew about it and would test it.
2.    Losee – no foreseeability
3.    Winterbottom – technicality
                                iv.           Dissent
1.    Intellectually dishonest? Maybe not, because Thomas needed rewriting, wasn't working.
2.    Rule isn't clear, can't decide what's inherently dangerous or not.
3.    Cases use logic of foreseeability to assess “inherent danger” anyways.Â
