The project to restate the law of torts offers a number of opportunities.' One is law reform, as the last two Restatements concerning products liability illustrate. Another is to reflect on doctrinal history, both in the case law and in the academy. Yet an- other, and the one I focus on, is the opportunity to clarify legal concepts, if necessary by reformulation and restructuring, in order to assist courts to manage new challenges that have emerged since the last Restatement. Few areas in the law of tort are in more need of this re-evaluation than the area covered by the term "legal cause" as described in the earlier Restatements, where its treatment is opaque, confused, and contradictory. Perhaps even more importantly, legal cause is especially ripe for reconsideration in light of its complementary relationship with concepts that define the incidence of the relevant tort obligation, such as the duty concept in the tort of negligence. As the reach of such incidence-defining concepts shifts, so too will the reach of the concept of legal cause.
This Article has three main themes. First, earlier Restatements took as their paradigm of a negligence claim one where the careless (positive) act of a private defendant results in physical injury to the plaintiff, such as when I carelessly run over a stranger with my car breaking her leg. But such claims, which I call "traditional" cases or "simple running down" cases, are not the most important in the challenges they present to modern tort doctrine. Of much greater significance are non-traditional claims, such as those alleging a negligent failure to control a third party, which test the limits of the contours of the map of torts. The Restatement (Third) of Torts ("Restatement (Third)") should squarely address the challenge non-traditional claims pose to earlier dogmas such as the general duty owed to the whole world and the implicit assumption that a defendant will be liable for a consequence of tortious conduct unless, exceptionally, a rule restricting liability operates.
Secondly, earlier Restatements are coy about the institutional competition between judge and jury that underlies doctrinal arrangements. Yet often the relationship of duty and legal cause is something akin to a seesaw. Often there is a choice to package a particular issue as one of duty, and therefore one for the court, or as one of legal cause, and therefore one for the jury, with a resultant empowering of one of these institutions at the expense of the other. Even where there is, as I suggest there should be, a move towards spelling out the detailed legal concerns that arise out of the particular facts of the case and bear on jury determinations, such a move might be characterized as empowering courts relative to the status quo. The Restatement (Third) should admit frankly the political dimension to possible doctrinal arrangements.
Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences,
54 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss3/11