Meinhard v. Salmon found a heightened duty of loyalty among joint adventurers: the duty of finest loyalty. Famously, Chief Judge (and later, Associate Justice of the United States Supreme Court) Cardozo wrote that trustees are held to “not honesty alone, but the punctilio of an honor the most sensitive.” Professor Christine Hurt comments on the missing history surrounding the relationship of Meinhard and Salmon and the condition of the United States at the time the underlying transactions took place. Professor Dalia Mitchell, rewriting the Meinhard opinion as Justice Mitchell, reaches the same conclusion but through vulnerability theory and the feminist widening the lens method. In doing so, she considered the history, context, and persons affected by the outcome in a way unique to the rewritten opinion. The original opinion is critiqued for essentially providing the utmost care or no duty whatsoever with nothing in between. Notably, the initial decision only takes the contractual relationship between Meinhard and Salmon into account. Under vulnerability theory, the opinion should consider the overall context of joint adventurers’ relationships to reach more equitable decisions.

Widely regarded as the most celebrated case in US tort law, Palsgraf v. Long Island R.R. Co. denied recovery to a woman who was injured in an explosion while she was standing on a platform waiting for a train. Famed jurist Benjamin Cardozo used the occasion to announce the “zone of danger” test which denies recovery to plaintiffs who are outside the scope of foreseeable harm. The rewritten feminist dissent criticizes Cardozo’s approach for its subjectivity and underlying gender and class bias, charging that Cardozo employed a double standard, displayed a lack of sympathy for the plaintiff, and ignored well-established principles of common law. Rather than using an abstract relational concept of negligence, the feminist dissent focuses on the real relationships among the parties and faults the railroad for encouraging risky masculine behavior on the part of its employees. The accompanying commentary recounts the little-known history of the litigation and discusses the larger social, political, and economic context.