Timothy Kelly, ‘The Third Restatement and the Jurisprudential Evolution of Duty: Tracking the “Duty War” in Palsgraf and Beyond’

ABSTRACT
The paper is about the jurisprudential evolution of the concept of duty from the early times of Blackstone, Austin, and Holmes, through each of the three Restatements of Torts, and up to the present day. I frame this history using the Palsgraf debate between Justice Cardozo and Judge Andrews as a touchstone for analysis. Although past Restatements endorsed the ‘relational’ view of duty associated with Cardozo (which can be traced back to Blackstone), the recent Restatement (Third) of Torts endorses a non-relational, ‘social’ view of duty associated with Andrews (which can be traced back to Austin and Holmes).

I discuss the jurisprudential history leading up to this reversal by the Restatement, as well as the reception of the third Restatement since publication. I argue that recent critiques of the third Restatement are unpersuasive, but that the third Restatement nonetheless shows little hope of resolving the duty debate. While acknowledging disputes about the third Restatement’s doctrinal merits, I focus more on Professors John Goldberg and Ben Zipursky’s yet-unscrutinized philosophical claim that HLA Hart’s ‘internal’ view of law favors their relational theory of duty and so bolsters the argument against the third Restatement’s social duty theory. I reject that novel argument, explaining that Professors Goldberg and Zipursky misunderstand Hart, whose jurisprudence is in fact no more or less hospitable to either theory of duty. This observation supports my overarching conclusion that the third Restatement, despite its merit, will not be able to convert committed relational duty theorists to the social duty theory and that the debate over duty shows no sign of stopping.

Kelly, Timothy, The Third Restatement and the Jurisprudential Evolution of Duty: Tracking the ‘Duty War’ in Palsgraf and Beyond (July 21, 2020). Drexel Law Review, 2020.

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