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Method and Morality in the New Private Law of Torts

15 Pages Posted: 1 Jun 2012  

John Oberdiek

Rutgers Law School

Date Written: June 1, 2012


The just-christened New Private Law is especially intriguing, for it self-consciously aspires to draw insight from both instrumentalism and formalism. In his ambitious and illuminating "Palsgraf, Punitive Damages, and Preemption," for example, Benjamin Zipursky could not be any more forthright in combining instrumentalist and formalist themes. On his view, the New Private Law’s methodology is sensitive to both the functions and the concepts internal to law. Thus the New Private Law promises to be the elusive third way. And in Zipursky’s hands, it seems to me, the New Private Law of Torts makes good on that promise, offering a sound approach to the adjudication of vexing questions at the frontier of tort law. But Zipursky nevertheless falters in eschewing consideration of the approach’s moral foundations. In addition to explicating just what a commitment to the New Private Law of Torts comes to, then, it is the aim of this essay to assess where normative and specifically moral considerations do, should, and must come into play in the New Private Law of Torts.

Keywords: torts, tort theory, private law, formalism, instrumentalism, duty, legal philosophy, moral philosophy, morality

Suggested Citation

Oberdiek, John, Method and Morality in the New Private Law of Torts (June 1, 2012). 125 Harvard Law Review Forum 189 (2012). Available at SSRN:

John Oberdiek (Contact Author)

Rutgers Law School ( email )

217 North 5th Street
Camden, NJ 08102
United States
856-225-6513 (Phone)

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