and I bonded in our hatred of our mean-spirited professor. I feared Zigman to an irrational extreme, whereas Dexter's reaction had more to do with disgust. 'What an asshole,' he would growl after class, often after Zigman had reduced a fellow classmate to tears. 'I just want to wipe that smirk off his pompous face.'
Gradually, our grumbling turned into longer talks over coffee in the student lounge or during walks around Washington Square Park. We began to study together in the hour before class, preparing for the inevitable-the day Zigman would call on us. I dreaded my turn, knowing that it would be a bloody massacre, but secretly couldn't wait for Dexter to be called on. Zigman preyed on the weak and flustered, and Dex was neither. I was sure that he wouldn't go down without a fight.
I remember it well. Zigman stood behind his podium, examining his seating chart, a schematic with our faces cut from the first-year look book, practically salivating as he picked his prey. He peered over his small, round glasses (the kind that should be called spectacles) in our general direction, and said, 'Mr. Thaler.'
He pronounced Dex's name wrong, making it rhyme with 'taller.'
'It's 'Thaa-ler,' ' Dex said, unflinching.
I inhaled sharply; nobody corrected Zigman. Dex was really going to get it now.
'Well, pardon me, Mr. Thaaa-ler,' Zigman said, with an insincere little bow. 'Palsgraf versus Long Island Railroad Company.'
Dex sat calmly with his book closed while the rest of the class nervously flipped to the case we had been assigned to read the night before.
The case involved a railroad accident. While rushing to board a train, a railroad employee knocked a package of dynamite out of a passenger's hand, causing injury to another passenger, Mrs. Palsgraf. Justice Car-dozo, writing for the majority, held that Mrs. Palsgraf was not a 'foreseeable plaintiff' and, as such, could not recover from the railroad company. Perhaps the railroad employees should have foreseen harm to the package holder, the Court explained, but not harm to Mrs. Palsgraf.
'Should the plaintiff have been allowed recovery?' Zigman asked Dex.
Dex said nothing. For a brief second I panicked that he had frozen, like others before him. Say no, I thought, sending him fierce brain waves. Go with the majority holding. But when I looked at his expression, and the way his arms were folded across his chest, I could tell that he was only taking his time, in marked contrast to the way most first-year students blurted out quick, nervous, untenable answers as if reaction time could compensate for understanding.
'In my opinion?' Dex asked.
'I am addressing you, Mr. Thaler. So, yes, I am asking for your opinion.'
'I would have to say yes, the plaintiff should have been allowed recovery. I agree with Justice Andrew's dissent.'
'Ohhhh, really?' Zigman's voice was high and nasal.
'Yes. Really.'
I was surprised by his answer, as he had told me just before class that he didn't realize crack cocaine had been around in 1928, but Justice Andrews surely must have been smoking it when he wrote his dissent. I was even more surprised by Dexter's brazen 'really' tagged onto the end of his answer, as though to taunt Zigman.
Zigman's scrawny chest swelled visibly. 'So you think that the guard should have foreseen that the innocuous package measuring fifteen inches in length, covered with a newspaper, contained explosives and would cause injury to the plaintiff?'
'It was certainly a possibility.'
'Should he have foreseen that the package could cause injury to anybody in the world?' Zigman asked, with mounting sarcasm.
'I didn't say 'anybody in the world.' I said 'the plaintiff.' Mrs. Pals-graf, in my opinion, was in the danger zone.'
Zigman approached our row with ramrod posture and tossed his Wall Street Journal onto Dex's closed textbook.
'Care to return my newspaper?'
'I'd prefer not to,' Dex said.
The shock in the room was palpable. The rest of us would have simply played along and returned the paper, mere props in Zigman's questioning.
'You'd prefer not to?' Zigman cocked his head.
'That's correct. There could be dynamite wrapped inside it.'
Half of the class gasped, the other half snickered. Clearly, Zigman had some tactic up his sleeve, some way of turning the facts around on Dex. But Dex wasn't falling for it. Zigman was visibly frustrated.
'Well, let's suppose you did choose to return it to me and it did contain a stick of dynamite and it did cause injury to your person. Then what, Mr. Thaler?'
'Then I would sue you, and likely I would win.'
'And would that recovery be consistent with Judge Cardozo's rationale in the majority holding?'
'No. It would not.'
'Oh, really? And why not?'
'Because I'd sue you for an intentional tort, and Cardozo was talking about negligence, was he not?' Dex raised his voice to match Zigman's.
I think I stopped breathing as Zigman pressed his palms together and brought them neatly against his chest as though he were praying. 'I ask the questions in this classroom. If that's all right with you, Mr. Thaler?'
Dex shrugged as if to say, have it your way, makes no difference to me.
'Well, let's suppose that I accidentally dropped my paper onto your desk, and you returned it and were injured. Would Mr. Cardozo allow you full recovery?'
'Sure.'
'And why is that?'
Dex sighed to show that the exercise was boring him and then said swiftly and clearly, 'Because it was entirely foreseeable that the dynamite could cause injury to me. Your dropping the paper containing dynamite into my personal space violated my legally protected interest. Your negligent act caused a hazard apparent to the eye of ordinary vigilance.'
I studied the highlighted portions of my book. Dex was quoting sections of Cardozo's opinion verbatim, without so much as glancing at his book or notes. The whole class was spellbound-nobody did this well, and certainly not with Zigman looming over him.
'And if Ms. Myers sued,' Zigman said, pointing to a trembling Julie
Myers on the other side of the classroom, his victim from the day before. 'Should she be allowed recovery?'
'Under Cardozo's holding or Justice Andrews's dissent?'
'The latter. As it is the opinion you share.'
'Yes. Everyone owes to the world at large the duty of refraining from acts which unreasonably threaten the safety of others,' Dex said, another straight quote from the dissent.
It went on like that for the rest of the hour, Dex distinguishing nuances in changed fact patterns, never wavering, always answering decisively.
And at the end of the hour, Zigman actually said, 'Very good, Mr. Thaler.'
It was a first.
I left class feeling jubilant. Dex had prevailed for all of us. The story spread throughout the first-year class, earning him more points with the girls, who had long since determined that he was totally available.
I told Darcy the story as well. She had moved to New York at about the same time I did, only under vastly different circumstances. I was there to become a lawyer; she came without a job, or a plan, or much money. I let her sleep on a futon in my dorm room until she found some roommates-three American Airlines flight attendants looking to squeeze a fourth body into their heavily partitioned studio. She borrowed money from her parents to make the rent while she looked for a job, finally settling on a bartending position at the Monkey Bar. For the first time in our friendship, I was happy with my life in comparison to hers. I was just as poor, but at least I had a plan. Darcy's prospects didn't seem great with only a 2.9 GPA from Indiana University.
'You're so lucky,' Darcy would whine as I tried to study.
