Palsgraf as 'Transsystemic' Tort Law
Journal of Comparative Law, Vol. 6, No. 2, pp. 243-261, 2012
Posted: 28 Feb 2013
Date Written: 2012
This paper revisits the 1928 case of Palsgraf v. Long Island Railway in order to illustrate and explore the substance and method of transsystemic law teaching. Grounded in the real comparative pedagogy of the law classroom, the case shows the integration of two approaches to the scope of tort liability. These two approaches, embodied in the judgements of Justices Cardozo and Andrews, map a key structural difference between the tort of negligence in Anglo-Canadian common law and the Quebec civil law of extracontractual obligations. In addition to underscoring the difference between a duty-based approach to delineating liability and one based on proximate cause, the paper insists that both the substance and method of these two legal traditions can be identified, examined, and questioned in the classroom through a fresh reading of an old and classic source, and that the source itself can provoke a fresh understanding of comparative pedagogy and purpose in law.
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