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James Gordley Law . . . and the Imagination? "That's not a real law," Alice told the judge at her trial in Wonderland. "You just made it up yourself." It is easy to see her point. People who make laws up cannot claim to be following laws that are already laid down. It would seem that ifa person is faithful to established law, he cannot be doing anything new. He does not need an imagination. Nevertheless, first year law students discover, often with shock, that they must be imaginative merely to understand what judges have already done. American law is based on the precedents set by judges in prior cases. American law students read collections of these cases called "casebooks." They are taught by a so-called Socratic method: professors ask them questions about how to reconcile one case with another. For example, a student might read several cases in which the defendant (or person sued) had physically harmed the plaintiff (the person bringing the lawsuit). In one case, the defendant was speeding , and he had to pay for the plaintiff's injuries. In a second case, Logos 1:1 1997 Law ... and the Imagination? the defendant was driving carefully, and the accident was caused by a freak patch of ice. This defendant did not have to pay. At this point, the student glimpses one important principle: if you negligently hurt someone, you pay, but if you were careful you usually do not. The student then reads a third case in which the defendant was careful but still had to pay. He built a reservoir using all reasonable care. He was held liable when the water escaped through abandoned subterranean mining shafts which he could not have detected .The judge said that although careful people are often not liable, nevertheless, "the person who for his own purposes brings on his lands ... anything likely to do mischiefifit escapes, must keep it at his peril"at least as long as it was not "naturally there."1 In a fourth case, an upstairs lavatory flooded and harmed the downstairs tenant . The upstairs tenant was not held Uable because he had been careful.2 In a fifth, a fuel truck blew up on a freeway.The oil company that owned the truck was held liable even though the truck driver had been careful.3 A law student quickly learns that it is dangerous merely to repeat the rule that a judge said he was following. Suppose his professor asked him what rule explains the results of the cases just described.The student would be unwise to respond with the rule that the judge formulated in the reservoir case: that one is Uable, even without negligence, if he brings on bis premises something that was not there naturally and can do harm ifit escapes. His professor will ask him whether a lavatory is "naturally" on the premises , and why the oil company was liable even though its truck was on a public highway. The object ofthe game, the student learns, is to think of a rule that can explain what thejudges actually did regardless ofwhat they said. For example, American legal scholars typically explain the cases of the reservoir and the fuel truck by saying that a person is liable, even without negligence, if his activity involves an excep129 130 Logos tional or abnormal risk.That explanation works, not only in these cases, but in others in which careful people were held liable for injuries caused by blasting and storing explosives, and for ground damage caused by aircraft. Ofcourse, instead ofhiding the ball, the professor could simply tell the student at the outset that even a careful person is liable if his activity entails an abnormal risk. But the professor wants the student to learn, not merely a particular legal rule, but how to think like a lawyer. Whenever lawyers argue, each tries to distinguish the cases against his cUent by proposing some rule that explains the outcomes of these cases and still enables his client to win.The judge has to decide which distinctions matter.That is how new formulations ofrules often arise. Historically,jurists arrived at the rule that even a careful person is liable...

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