Robert (gurdonark) wrote,
Robert
gurdonark

Palsgraf Revisited

The news recounts the details of the terrorist attack in Madrid, in which bombs placed carefully on commuter trains exploded, causing the loss of hundreds of innocent lives.

As I write this, the blame for the incident appears to be shifting from the Basque separatist terrorists to Islamic extremists.

I feel a tug of sympathy for family members lost, and a biting anger at people who do things like this. I wish I spoke Spanish, and could write appropriate letters to the newspapers, because I remember the outpourings of grief from abroad that touched people in our country in 2001.

This sleepless dawn, though, I'm thinking by way of contrast of a different train incident, which happened in New York, many years ago. A woman named Helen Palsgraf was riding a train, when a different sort of explosion took place.

The things that happened to her were so novel that virtually every American law student studies her case. I'm trying to use it to draw some larger moral for myself today.



Helen Palsgraf found herself called upon to sue in New York, many decades ago. The appellate opinion in her case was written by Justice Cardozo, whom many esteem as a great legal scholar. I'll quote from the opening portion of his opinion in the case, which I've broken down into additional paragraphs because I find bite-sized paragraphs easier to read in a weblog:

"Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it".

"One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind".

"In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents".

"The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues".

I imagine Helen Palsgraf, a forty year old Brookyn janitor, standing upon the train platform, bound for Rockaway Beach, suddenly felled by scales which descended upon her for reasons nobody could imagine or understand. Why did the train passenger carry a package of fireworks, covered by a newspaper? We don't know, although the suggestion is that it is a matter of folly, not anarchy. The owner of the fireworks was never found. Twelve people were hurt in the incident.

Helen Palsgraf won a six thousand dollar jury verdict because of her injuries, including, not surprisingly, a stammer. I believe I would stammer, too, if scales toppled by fireworks fell upon me. Her victory in the trial court and in intermediate appeals went for naught, as in the famous New York Court of Appeals decision on her ultimate appeal, she lost her case.

Justice Cardozo's opinion receives careful study by first year law students in search of an understanding of the elusive tort ("civil wrong") concept of "foreseeability". Could the guard have foreseen that pushing the package-bearing passenger from behind would literally lead to fireworks going off, leading to Ms. Helen Palsgraf's injuries? Mr. Justice Cardozo thought not, and the cogency of his reasoning, though, ironically, still debated, influenced the law of what civil wrongs can result in damage awards.

The Palsgraf case represents the law trying to take into account the remedies which arise when the unfortunate absurd event takes place. When should society require someone to pay for actions which, without intention hurt someone? When are the consequences of carelessness foreseeable? What is carelessness in the first place?

Madrid represents something else altogether. It's something that does not lend itself to the intricate theory of the arcanities of civil law. It's a terrible, tragic, intentional
act of malice. It's also not something remote, but something nearby, in so many ways.

It's so easy to sit back and say "terrorism overseas". But we are not that far removed from September 11. For those of us in Texas, New York seems far away much of the time. I can drive three and one half hours from my home to Oklahoma City, where a memorial of empty chairs reminds us that Timothy McVeigh and his co-conpirators blew up an entire building, killing so many people, including children in daycare. I can drive a few hours more to Tulsa, where in the 1920s, African-Americans were tormented by white vigilantes, determined to "round up" an entire community in light of a false accusation of rape against one member of the community.

We're not far removed from the days of Jim Crow, when oppression of African-Americans was institutionalized, and even in part approved by a United States Supreme Court case called Plessy v. Ferguson. We're still living in an age in which violence against women serves as one of the top causes of death against women under forty. We do not have to look far to find terrorism. It's not confined to Islamic extremists. It's not confined to exotic locales.

It's tempting to explain Madrid in similar terms to what happened to Helen Palsgraf. Terrorists become the fireworks in the bag, something that will just explode and knock the scales over sometimes. The fact that we inevitably will face more severe terrorist attacks causes a kind of resignation to set in, for me anyway.

I dislike violence intensely, but I tend to set aside my general disdain for solutions involving force when it comes to dealing with terrorists. I do not know an easy way to deal with these violent threats to any hope of this country one day achieving a fully integrated, peaceful democracy. I favored the war in Afghanistan.

Although I did not feel that the war in Iraq was prudent policy, I must admit that a key reason I feel and felt this way was that I wanted the resources of our government spent on more direct terrorist threats, and the UN to handle the evil but bottled up Saddam Hussein. I am glad Mr. Hussein is overthrown, though, and I support our troops, dealing with the impossibilities of being an occupying force beloved by nobody. I hope we can find a way to transition out of Iraq and bring them home, without permitting Iraq to descend into chaos or oppression.

I think that police action to try to "root out" the cells of terrorists across the world is essential and important. I disdain efforts to curtail civil liberties in this pursuit, but I believe that within the boundaries of civil rights, we should be expending extreme resources on finding true homeland security. I do not wish to burden this post with politics, but one of my main grounds of opposition to the current tax cut regime is that we need to be spending money to secure utilities, water and food supplies, and to ensure we have a public health system capable of meeting a terrorist mass attack.

For all the "let's find 'em and stop them" that I feel and advocate, though, I think that ultimately the solutions are going to be less about identifying and eliminating every terrorist than about working to ensure that social justice exists for more disenfranchised people who drift into radical factions because no mainstream solutions exist. A lunatic fringe may always do terrorist things, but I believe our society has to regain or acquire the vision that a just society with relative freedom from material want should be available to all.

I think that America will do far more with philanthropy than it ever will with guns to stop terrorism. I think that addressing human rights here at home, as well as human rights overseas, is one step in that direction. We have a smug way here of considering ourselves a fully-evolved democracy, when in fact we are a young nation, with far to go to really achieve a truly free society. I treasure the many advances we have made, but we have a long way to go to truly create that place where "every kid has a chance" and each person is accorded his or her essential dignity.

Yesterday in Madrid, though, we were reminded that others want a world not truly free--a world built on killing people just to make a point. In the case of some extremists, it's a world that oppresses women and treats the heterodox as "heretics", subject to retribution. We have not forgotten how the Taliban turned soccer stadiums into execution zones.

I tried to put together some pithy last paragraph which ties Helen Palsgraf and the Madrid victims in some tidy box. But there's no tidy box. It's going to be an untidy time, for years to come. I hope it's a time, though, when changes take place, and in which someday innocents are not bombed, but spared.
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