My Grandmother was Mrs. Palsgraf: Ways to Rethink Legal Education to Help Students Become Lawyers, Rather than just Thinking Like Them

• Author: Ian Gallacher
• Position: Professor of Law and Director, Legal Communications and Research, Syracuse University College of Law. Thanks to Dean Craig Boise for his support. This Article is based, in part, on two presentations I gave in 2015: one at the Association of Legal Writing Directors conference in Memphis, and one, co-presented with Professor Elizabeth Lenhart, at...
• Pages: 241-286

MY GRANDMOTHER WAS MRS. PALSGRAF:

WAYS TO RETHINK LEGAL EDUCATION TO HELP

STUDENTS BECOME LAWYERS,

RATHER THAN JUST THINKING LIKE THEM

IAN GALLACHER*

I. INTRODUCTION

To be clear: My grandmother was not Mrs. Palsgraf. My grandmother

was Elsie Olley.1She was from Wales, lived almost her entire life in a

small town in the southeast of England, and spent just over a day in New

York in the early 1980s. I was with her all day, and to my certain

knowledge she was never in a station run by the Long Island Railroad.

But to be honest, if not clear, while my grandmother was not Mrs.

Palsgraf, she was not exactly “not Mrs. Palsgraf”either. This Article seeks

to explore and explain that conundrum, and in the explaining, to explore

how law schools can do a better job of helping law students become

practicing lawyers. It begins with a brief discussion of the Palsgraf case,2

both how it is taught and why it is taught that way in law schools, and then

contrasts and compares the facts of Palsgraf with the facts of my

Copyright © 2018, Ian Gallacher.

*Professor of Law and Director, Legal Communications and Research, Syracuse

University College of Law. Thanks to Dean Craig Boise for his support. This Article is

based, in part, on two presentations I gave in 2015: one at the Association of Legal Writing

Directors conference in Memphis, and one, co-presented with Professor Elizabeth Lenhart,

at the Applied Legal Storytelling conference in Seattle. Professor Lenhart helped to

sharpen my thinking on this subject immeasurably, and I thank her for her many insights.

My thanks to David Huber and Lillian Hines, two wonderful research assistants who put up

with a lot of strange research requests, and to Christine Demetros for her good humor and

flawless librarian’s skills. This is for my mother’s parents, Jack and Elsie Olley, neither of

whom are still with us, and my mother, Joan Upton-Holder, and uncle, Clifford Olley, both

of whom are still very much with us and who lived through some astonishing things when

they were young. It is also for my father, Henry Gallacher, and his parents, Henry and

Barbara Gallacher, none of whom had an easy time between 1939 and 1945. As ever and

always, this is for Julie McKinstry.

1All information about my family members comes from family history and personal

knowledge. Although it violates citation protocol, can we agree that repetitive citations to

family lore would be distracting and unnecessary?

2Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).

242 CAPITAL UNIVERSITY LAW REVIEW [46:241

grandmothe r’s worst day in order to see why relatively similar experiences

likely produce very different results when the stories are told. The Article

then looks in more depth at the first year in law school, the effect it has on

students, those who teach it, and its relationship to the practice of law.

After concluding that the traditional method of first-year law school

education fails students, the lawyers who will employ them after

graduation, and the clients they will represent, this Article proposes a

series of possible changes to legal education, ranging from the modest to a

radical reworking of the entire law school experience. It emphasizes the

value of simulation-based experiential education in the first year of law

school and advocates that law schools make the difficult decision to

completely change their approach to teaching the law and to preparing law

students to become lawyers.

All change is painful to some, and law schools appear to have a low

tolerance for the pain inherent in the kind of curricular restructuring

mooted here.3But to (possibly) paraphrase Trotsky, law schools might not

be interested in change, but change is interested in them.4And while some

3As William Henderson has noted:

Law schools are ill-equipped to teach many of [the] critical

competencies [required by law students today] . . . . Here is the brutal

truth: the resources to pay for this retooling are going to have to come at

the expense of traditional scholarship. Time is our primary asset; this is

a painful tradeoff because scholarship is the most enjoyable part of the

job for many law professors. Further, unlike prolific scholarship

writing, retooling curriculum does not enhance one’s prospects of

getting a lateral appointment, so many law professors will not come to

the party willingly.

William Henderson, The Hard Business Problems Facing U.S. Law Faculty,N

AT’LL.J.L.

SCH.REV.(Oct. 31, 2011, 12:39 PM), http://legaltimes.typepad.com/lawschoolreview/2011

/10/index.html [https://perma.cc/L8C7-STFW] (quoting Roy Stuckey, The American Bar

Association’s New Mandates for Teaching Professional Skills and Values: Impact, Human

Resources, New Roles for Clinical Teachers, and Virtual Worlds, 51 WAKE FOREST L. REV.

259, 266–67 (2016)).

4What exactly Trotsky said is a source of much smoke but little fire. He certainly did

not say, “You may not be interested in war, but war is interested in you,” which is possibly

the most famous version of his aphorism. See Leon Trotsky,WIKIQUOTE,

https://en.wikiquote.org/wiki/Leon_Trotsky#Misattributed [https://perma.cc/DR93-QXGV].

It seems more likely that he said, “You may not be interested in the dialectic, but the

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2018] MY GRANDMOTHER WAS MRS. PALSGRAF 243

of these proposals would involve a radical, and possibly painful,

reimagining of le gal education, it woul d also offer greater choice to

students, reinvigorate law school teaching and curricula, and would,

arguably, better prepare law students to be skilled, professional, and ethical

lawyers. These are surely changes worth considering.

II. THE IMMORTAL LIFE OF MRS.PALSGRAF5

To begin at the beginning. As every lawyer and law student reading

this surely knows, Mrs. Palsgraf was injured while waiting to take a train

to Rockaway Beach in an accident involving two employees of the Long

Island Railroad, fireworks, and a scale.6She sued the Long Island Railroad

for her injuries, won at trial and in the intermediate appellate court, but lost

her case in the New York Court of Appeals when Chief Judge Cardozo

ruled that her injuries were not the responsibility of the Railroad.7It is

likely that almost every reader of this Article could even quote some or all

of Judge Cardozo’s famous, and famously terse, statement of the facts of

the case.8But here is a question: What was Mrs. Palsgraf’s first name?9

dialectic is interested in you,” but there seems to be no documentary support for that

formulation either. Id. Whatever Trotsky did or did not say, though, it is too good a line to

go unused.

5This heading is, of course, an intentional paraphrase of the 2010 book The Immortal

Life of Henrietta Lacks, a woman who, in a very different way, unwittingly provided future

generations with ways to develop their knowledge. See generally REBECCA SKLOOT,THE

IMMORTAL LIFE OF HENRIETTA LACKS (2010).

6Palsgraf, 162 N.E. at 99.

7Id. at 105.

8As a reminder, here it is:

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, bou nd

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

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

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