New Private Law Theory and Tort Law: A Comment
Harvard Law Review Forum, 2012
14 Pages Posted: 1 Feb 2012
Date Written: January 31, 2012
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.
Keywords: Palsgraf, Cardozo, Holmes, duty, negligence, foreseeability, proximate cause, punitive damages, Philip Morris v. Williams
JEL Classification: K13, K19, K39, K49
Suggested Citation: Suggested Citation