A Case of Judicial Chutzpah (The Judicial Adoption of Strict Tort Products Liability Theory)

[O]ur courts in discovering strict tort have indeed acted in rather unusual ways: ways which, I believe, can be explained only by realizing that we are dealing with those who have just discovered the gospel, who have just heard a message from on High. Let me give you some specific examples

CONSTITUTIONAL LAW-FIFTH AMENDMENT-PRIVILEGE AGAINST SELF-INCRIMINATION BY ADMISSION, OR KNOWLEDGE, OF COMMUNIST ACTIVITIES

ln response to a subpoena, petitioner appeared as a witness before a United States district court grand jury. Several questions concerning· her knowledge and association with the Communist Party were put to her. In each case, she refused to answer the questions, claiming the constitutional privilege against self-incrimination. For refusal to answer these same questions when brought before the district court, petitioner was adjudged to be in contempt of court. The court of appeals affirmed the holdings, and certiorari was granted by the Supreme Court. Held, judgment reversed. The Smith Act makes it unlawful to advocate knowingly the desirability of the overthrow of the government by force or violence, to organize or help to organize any society which teaches, advocates, or encourages such overthrow of the government, or to be or become a member of such a group with knowledge of its purposes. In view of that act, answers to the questions propounded might have furnished a link in the chain of evidence needed in a prosecution of the petitioner for violation of, or conspiracy to violate, said act. Under these circumstances, the Constitution gave the petitioner the privilege of remaining silent. Blau v. United States,/em\u3e, 340 U.S.· 159, 71 S.Ct. 223 (1950)

Judicial Misuses of the Word Fraud to Defeat the Parol Evidence Rule and the Statute of Frauds

The courts, of course, continue to recognize that the Parol Evidence Rule exists and to pay lip service to it. However, they have developed a series of so called exceptions to its application, and lawyers for litigants have learned these exception lessons well. Thus, whenever a client becomes unhappy with one or of more of the terms of a written contract which he signed, his lawyer likely will fish out one of these exceptions in an effort to excuse his client from it. Unfortunately, many Ohio lawyers will not realize that their Supreme Court in its Marion Production Credit Association decision has made this significant contribution to the legal authorities dealing with the fraud exception to the Parol Evidence Rule. Indeed, the court itself apparently did not realize it. Quite to the contrary, Justice Holmes, writing for the court, thought he was analyzing a problem involving the Statute of Frauds! But, as will be pointed out below, this was an error. Apparently, there were two reasons for this judicial goof. One reason was because the court was led astray by the lawyers. The other was that the court used the word fraud imprecisely. These are worth discussing because the same two reasons often lead our courts into error