Abstract

http://ssrn.com/abstract=1996680
 


 



New Private Law Theory and Tort Law: A Comment


Keith N. Hylton


William Fairfield Warren Distinguished Professor, Boston University; Professor of Law, Boston University School of Law

January 31, 2012

Harvard Law Review Forum, 2012
Boston Univ. School of Law, Public Law Research Paper No. 12-04

Abstract:     
This comment was prepared for the Harvard Law Review symposium on “The New Private Law,” as a response to Benjamin Zipursky’s principal paper on torts. I find Zipursky’s reliance on Cardozo’s Palsgraf opinion as a foundational source of tort theory troubling, for two reasons. First, Cardozo fails to offer a consistent theoretical framework for tort law in his opinions, many of which are difficult to reconcile with one another. Second, Palsgraf should be understood as an effort by Cardozo to provide greater predictability, within a special class of proximate cause cases, by reallocating decision-making power from juries to judges. It was almost surely not an effort to set out a nonconsequentialist theory of tort law. While I agree with some of the goals of the new private law movement, much work remains to be done, within the methodological approach championed by Zipursky, in constructing a rigorous theoretical framework.

Number of Pages in PDF File: 14

Keywords: Palsgraf, Cardozo, Holmes, duty, negligence, foreseeability, proximate cause, punitive damages, Philip Morris v. Williams

JEL Classification: K13, K19, K39, K49

Accepted Paper Series


Download This Paper

Date posted: February 1, 2012  

Suggested Citation

Hylton, Keith N., New Private Law Theory and Tort Law: A Comment (January 31, 2012). Harvard Law Review Forum, 2012; Boston Univ. School of Law, Public Law Research Paper No. 12-04. Available at SSRN: http://ssrn.com/abstract=1996680

Contact Information

Keith N. Hylton (Contact Author)
William Fairfield Warren Distinguished Professor, Boston University ( email )
595 Commonwealth Avenue
Boston, MA 02215
United States
617-353-8959 (Phone)
Professor of Law, Boston University School of Law ( email )
765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-8959 (Phone)
617-353-3077 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 926
Downloads: 131
Download Rank: 128,149

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.234 seconds