52 Pages Posted: 15 Oct 2011 Last revised: 13 Mar 2012
Date Written: February 10, 2011
This article addresses the subtle yet turbulent “duty wars” currently raging with respect to the conceptual nature of duty in tort law. The scholars have thus far divided principally into three camps, and the courts have increasingly been taking their cue from this scholarship and altering their previously settled notions of the duty element. The main dispute has been over the role of foreseeability in the duty analysis. This article critiques the principal approaches taken in the literature, demonstrating, for example, why the vision of duty articulated in the new Restatement (Third) of Torts and represented by one of the scholarly camps – “purging” foreseeability from duty – is incoherent. The article develops the framework for a different, positive conception of duty, a policy, not obligation, centered view, but in which foreseeability is itself a normative policy subelement different in nature from the sort of foreseeability that underlies the jury’s breach and proximate cause findings.
The methodological insight that engenders this conception concerns the “self-reflexive” nature of the court’s engagement with questions of law, in particular the duty question. While the community asks the first-order question what is the obligation we owe or should owe one another, the court self-reflexively addresses the higher-order questions of how it should rule on the duty issue, and what will be the impact of its ruling on the community and society. At those times, courts implicitly, and sometimes explicitly, speak of themselves and grapple with the judicial system’s institutional role, legitimacy, and limitations. Appreciating the court’s self-reflexive character enables us to show why, as an analytic matter, the inclusion of foreseeability in the court’s duty analysis does not usurp the jury’s role. This insight also grounds the new argument presented in this article for why duty arises from policy rather than obligation.
Keywords: tort law, duty, duty wars, foreseeability, instrumentalism, Goldberg & Zipursky, Esper & Keating, Cardi & Green, obligation, products liability, jurisprudence, torts, restatement, restatement (third) of torts
Suggested Citation: Suggested Citation
Golanski, Alani, A New Look at Duty in Tort Law: Rehabilitating Foreseeability, and Related Themes (February 10, 2011). Albany Law Review, Vol. 75, 2011. Available at SSRN: https://ssrn.com/abstract=1944323