From: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal
Subject: Re: Attractive Nuisance Common Law
Date: 12 Oct 92 21:13:45 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <1992Oct12.180716.9387@telebit.com>, brunner@telebit.com (Eric 
Brunner) writes:
> Where you are "wrong" IMHO is to apply
> constitutional reasoning where application of the common law would suffice,
> albiet in three of four states, with caveats as noted.

My point was only that a single case in a particular case will not "settle 
the issue" for all states.  That's all.  You're posting in misc.legal.  
Expect responses along those lines.

> The notion that no state court can decide for other states is also somewhat
> misapplied (IMHO). It is routine to find foreign decisions cited as the > 
basis
> for some appelate finding in state cases, e.g., Cal. citing Ill. and the
> reverse... not to mention the use of Deleware law in commercial law.

The second sentence is entirely correct.  The first is not; a state court 
does not decide for other states.  Other states' courts decide for 
themselves, often adopting foreign states' rulings, because they agree with 
them.

> As you
> note, foreign cites do not become law until used within a state, nor those
> in the 2nd Restatement 

As you note, most states have A.N laws.  An entirely different question than 
the point I was dealing with, which was that a single case settled the law 
for the nation.  The Restatement, like a case from a foreign state, only has 
an advisory status.

>  -- personally I wouldn't want to be the respondent
> in a good A.N. case in one of those three or four remaining states without
> explicit A.N., due to the non-negligable likelyhood that on appeal my name
> would figure promenently in future case books as the case "settling" A.N.
> in that state.

Neither would I, but again, I wasn't asserting that states that do not have 
A.N. laws won't ever.

> >So to say "The N.A. liability issue was settled in the US with the
> >turntable 
> >case" is misinformation.  I suspected it was based on something factual, 
> >and 
> >wanted to find out what the grain of truth in it was. 
> 
> Well, we can suppose that two out of two torts teachers are wrong, or that
> being "right" means "without exception in time, place, or substance", or
> that ... Oh heck. Go ahead, be right. Note that I _only_ post 
> misinformation,
> I couldn't possibly spend the time (or have the present knowledge) to draft
> an error-free draft on any substantive body of law.... An if I could, this
> isn't exactly the first publishing venue that suggests itself. Any 
> exceptions
> to this are pure happenstance, to which I am blissfully unaware.

Eric, take your downers! :-) There's nothing personal here.  I pointed out 
one thing: that a case in one state does not settle the law for all others, 
as you had posted.  You did not say that one state had decided a case, and 
other states had decided similar cases the same way.  You said that a 
particular case had decided the matter for the US.  It was impossible from 
the statement whether you had a reasonable reason for believing that.  I 
don't know you, or your level of competence in understanding the law.  
Apparently, you knew that the correct precedential value of the case was 
merely persuasive, and slipped in your phrasing to state that it settled 
thelaw for the US.  But that's not what you typed.

Sheesh!

  
> Abstracting a remark:
> 
> 	My point is that the only court system that can settle
> 	something for the US is the federal system.
> 
> There is of course, in addition to federal law, treaty law as a source of
> uniform jurisdiction (see for instance, the Hague Convention on Child
> Abduction)... which I've personally used, though prior to the deposit of
> the instrument of ratification... it is now law, in the US (and Belgium).

I have to plead ignorance in that area;  I haven't seen treaty used as a 
source of law for issues involving purely domestic parties.

Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.
Newsgroups: misc.legal,alt.censorship,misc.headlines