Brooklyn Journal of Corporate, Financial & Commercial Law

First Page



The “duty wars” have been raging among tort scholars for some time, sparked by the Third Restatement’s deflationary approach to the duty element of the negligence cause of action. Defenders of the traditional approach to duty insist that it is necessary to ensure that tort law stays on the right side of the boundary between public and private law insofar as the negligence tort recognizes a relational conception of rights owed among individuals. The worry is that negligence shorn of the duty element becomes an instrument of efficiency or deterrence rather than recognizing obligations. Relatedly, the approach pioneered by the California Supreme Court, starting in the 1960s, using open-ended policy factors to determine the existence of a duty, has led to an expansionary trend in tort liability. Working with Aaron Twerski in our Torts casebook, including the incorporation of several recent and important cases, has forced me to reckon with my view on the duty wars. In this Article, I acknowledge the foundational significance of the moral relationship between injurer and victim, as emphasized by private law theorists, but argue for a way of understanding the content of duties among the parties in a way that reflects societal interests as well as the interests of the parties to the dispute. In this way, I suggest a middle ground or stance of neutrality in the duty wars.

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