Tuesday, December 1, 2015

The Place Where the Boy Got His Fingers Pinched

Today, the U.S. Supreme Court issued its first decision of the October 2015 term, OBB Personenverkehr AG v. Sachs. The case involved an attempt to sue the Austrian national railroad. However, I am not interested in discussing the nuances of sovereign immunity. I want to highlight one of the letters/books cited in Chief Justice Robert's unanimous opinion of the court: Holmes and Frankfurter: their correspondence, 1912-1934. Here's how it was used:
A century ago, in a letter to then-Professor Frankfurter, Justice Holmes wrote that the “essentials” of a personal injury narrative will be found at the “point of contact”— “the place where the boy got his fingers pinched.” Letter (Dec. 19, 1915), in Holmes and Frankfurter: Their Correspondence, 1912–1934, p. 40 (R. Mennel & C. Compston eds. 1996). At least in this case, that insight holds true. Regardless of whether Sachs seeks relief under claims for negligence, strict liability for failure to warn, or breach of implied warranty, the “essentials” of her suit for purposes of §1605(a)(2) are found in Austria.
OBB Personenverkehr AG v. Sachs, No. 13–1067, slip op. at 9 (U.S. Dec. 1, 2015).
If you're interested in reading more of this letter or other letters between Justice Holmes and then-Professor Frankfurter, we have this book at the Gallagher Law Library. It's available in the Classified Stacks at KF8745.H6 A433 1996. Here's the publisher's description of the book:
Nearly four hundred previously unpublished letters capture the essence of an extraordinary and in some ways unlikely friendship between one of America's preeminent jurists and a younger, reform-minded colleague who would himself one day ascend to the Supreme Court. Oliver Wendell Holmes was seventy-one when he was introduced to fiery, effervescent Felix Frankfurter, who had come to Washington at age thirty to serve President Taft. The two couldn't have had more different backgrounds: Holmes was a Civil War hero of Boston Brahmin stock, while Frankfurter was a Jewish immigrant whose reformist views would lead him to help found the American Civil Liberties Union and act as key advisor to Franklin Roosevelt and his New Deal.  
With an introduction that provides historical background and annotations that supply context for cases mentioned, this unique collection illuminates a strong and mutually satisfying personal and professional relationship between two men whose exchanges on the meaning of law in general and American law in particular, the editors write, "found expression in their work and influenced legal and political change in their own lifetimes and in ours as well."
I'm not sure when Chief Justice Roberts, his clerks, or another member of the Court read the letter. It wasn't referenced in any of the briefs of this case. Maybe one read the book over the summer; the possibilities are endless. I could only find a couple references to the letter in law review articles, one from a book review of a Holmes biography (33 Wm. & Mary L. Rev. 1219) and the other from an article by Robert C. Post, Dean of Yale Law School. Here is the reference made in the latter:

Holmes prized concision, believing that “the art of writing legal decisions . . . is to omit all but the essentials--`The point of contact formula—the place where the boy got his fingers pinched. The rest of the machinery doesn’t matter.
Robert Post, Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, 85 Minn. L. Rev. 1267, 1291 (2001).
The amount of thought and investigation that goes into opinion writing fascinates me. Here is a more complete selection of the letter from Justice Holmes, written nearly a century ago:
Did I ever tell you of Corot -- the painter -- that I heard once that he began as most careful draughtsman working out every detail and came to his magisterial summaries at the end? I have thought of that in writing opinions latterly. Whether the brethren like it I don't know. Of course -- the eternal effort of art even the art of writing legal decisions is to omit all but the essentials -- 'The point of contact' is the formula. The place where the boy got his fingers pinched -- the rest of the machinery doesn't matter. So the [Japanese] master puts five dots for a hand -- knowing they are in the right place and the etcher elaborates what he wants you to see and leads up to it with a few scrawls.
Letter from Oliver Wendell Holmes to Felix Frankfurter (Dec. 19, 1915) (on file at Holmes Papers, Harvard Law School Library). 

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