New Private Law Theory and Tort Law: A Comment

14 Pages Posted: 1 Feb 2012

See all articles by Keith N. Hylton

Keith N. Hylton

Boston University - School of Law

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

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:

Keith N. Hylton (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-8959 (Phone)
617-353-3077 (Fax)

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