According to a well-known story, Cardozo's Palsgraf opinion' was born in his attendance at the discussion of the Restatement (First) of Torts. If the formulations now proposed for the Restatement (Third) of Torts (proposed "Restatement") stand, the Palsgraf case--indeed the whole notion of duty as a viable element of negli- gence analysis-- will effectively be dead. The proposed Restatement suggests that "duty is a non-issue" confined to unusual cases where "special problems of principle or policy... justify the withholding of liability." Duty has then merely a negative significance. It refers not to an element necessary to establish the defendant's liability, but to a reason for exempting the defendant from a liability that would otherwise obtain. This proposal radically transforms the function of duty, which Cardozo's judgement brilliantly articulated. In this sense, the process of restating tort law will turn out to have both created and killed the Palsgraf analysis.
The thoughtful paper by Professors Goldberg and Zipursky gives good reason to lament the prospect of Palsgrafs passing. Confronting the confusion in the judicial treatment of duty (the "mess," as they candidly call it), their paper helpfully surveys the cases and classifies the various kinds of considerations that figure in the discussion of duty. In their view, the proposed recasting of duty as an exemption is the legacy of the Legal Realists' skepticism concerning the conceptual structure of tort law. Consequently, they argue, the proposed Restatement succeeds neither in accurately restating the law of negligence nor in presenting it as a body of legal principle. They accordingly suggest that the Augean stables should be cleaned up rather than demolished, offering their analysis as an effort toward that end.
Although I admire the general elegance and erudition of Professor Schwartz's proposed Restatement, I want in this Essay to reinforce the Goldberg-Zipursky criticisms of its treatment of duty. I start with the general conception of liability that is implicit within tort law as a normative practice. This general conception brings out the notions of fairness and coherence that underlie tort law as a whole. Central to this conception, as I explain in Part II, is the correlativity of the plaintiffs right and the defendant's duty. I then ask in Part III what issues one would expect the law to address if negligence doctrine is to be consistent with that general conception. These issues are, first, the identification of the plaintiffs right and, second, the nexus between that right and the defendant's duty. The modern law of negligence has indeed dealt with these issues under the rubric of duty, thus imbuing duty with the positive significance that the proposed Restatement ignores. In this respect, as I contend in Part IV, the proposed Restatement is less adequate than its predecessor.
Throughout this Essay, my concern is not with specific duty doctrines but with the conceptual structure of the duty inquiry. A general section on duty in a new Restatement ought, at a minimum, to provide lawyers and judges with suitable categories for organizing their thoughts about negligence liability. How particular cases should be decided is another matter. One can, however, be confident that without a conceptual structure that raises the pertinent issues, the treatment of particular cases can hardly be satisfactory.
Ernest J. Weinrib,
The Passing of Palsgraf?,
54 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss3/6