The Passing of Palsgraf?
10 Pages Posted: 5 Jun 2012
Date Written: 2001
This article criticizes Professor Schwartz's proposed Restatement (Third) of Torts due to its confinement of duty in negligence law as a non-issue that is to be ignored except in special circumstances that warrant the withholding of liability. Liability is founded on the correlative relationship of defendant and plaintiff as doer and sufferer of the same injustice. Cardozo’s opinion in Palsgraf brilliantly articulates this correlativity in terms of the plaintiff's right and the defendant's duty not to act negligently toward that right. The concept of duty in negligence law therefore has more than a negative significance; it acts as a marker of the correlativity that obtains between the plaintiff's right and the defendant's wrong. By ignoring this issue, the proposed Restatement is less adequate than its predecessor.
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