The passing of Palsgraf?

If the formulations now proposed for the Restatement (Third) of Torts stand, the Palsgraf v. Long Island R.R. Co. case (1928) - indeed the whole notion of duty as a viable element of negligence 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. This Essay starts 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 is the correlativity of the plaintiff's right and the defendant's duty. It is asked 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 plaintiff's 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, it is contended, the proposed Restatement is less adequate than is predecessor.