From: brunner@telebit.com (Eric Brunner)
Subject: Re: Attractive Nuisance Common Law
Organization: Telebit Corporation; Sunnyvale, CA, USA
Date: Tue, 13 Oct 1992 18:07:15 GMT

In article <9f.Y02fH25wf01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:
>In article <1992Oct12.180716.9387@telebit.com>, brunner@telebit.com (Eric 
>Brunner) writes:

[if I may take the liberty to summarize, Terry writes that one case does
 not make law, in this context.]

>> 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.

Hmm, I had notice that m.l was in the newsgroups line, but thanks Terry
for making sure that I understand the context in which you are making
your point.

>> 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.

Goodness, did I actually write that California appelate decisions are binding
on Illinois? What is the nit which is being picked at here? Does this follow
from the one-case-decides-all you've understood me to have intended? Oh well,
one out of two.

>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.

This seems to be a pretty important point. Silly tort law teachers, refering
to the turntable cases as common law and the progressive adoption of the
exception to the general liability rule in trespass.

>> >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.

I can't seem to find my downers anywhere, so I'll have a doughnut instead.
One frequently refers to the turntable cases casually, with the understanding
that the listener is aware that key issue is the exception and its conditions,
and, that the US is a federal system... In any event, my keyboard has a mind
of its own, and fails to invoke spell or style as a matter of course.

>Sheesh!

Raised to some positive integer power -- first the charming persons from
Stanford thinking kids and hazards is really a thread provided to them to
prove someone isn't a lizard, and somewhere in Mountain View, who at last
reading was going to get me for CPC 653(f)(b) (not 635(b) as I'd guessed,
solicitation of murder), and then this bit of confused writing and/or reading.

I'm going back to kids -- you have a nice day in a federal sort of way.
When you visit, be sure to get the lines right in the chorale -- all
together now: "Kids are bad and parents worse, glory to the fence line
curse..."

>> 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.

You think I'm going to touch this one? How do I know what constitutes
"purely domestic parties" in the arbitrary readers mind? Divorce is
usually thought of as domestic, but one could argue that it fails the
arbitrary test because the issue is the extension of the venue of the
state entity (family court), to bind across jurisdictional lines. No
way San Jose. I got my daughter back into California using Hague language
in my Cal order, if that isn't the real issue, I don't want to know.

-- 
Eric Brunner Tule Network Services
uucp: uunet!practic!brunner
trying to understand multiprocessing is like having bees live inside your head.

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