This article addresses the subtle yet turbulent "duty wars" currently raging with respect to the conceptual nature of duty in tort law. The scholars have thus far divided principally into three camps, and the courts have increasingly been taking their cue from this scholarship and altering their previously settled notions of the duty element. The main dispute has been over the role of foreseeability in the duty analysis. This article critiques the principal approaches taken in the literature, demonstrating, for example, why the vision of duty articulated in the new Restatement (Third) of Torts and represented by one of the scholarly camps--"purging" foreseeability from duty--is incoherent. The article develops the framework for a different, positive conception of duty, a policy, not obligation, centered view, in which foreseeability is itself a normative policy sub-element different in nature from the sort of foreseeability that underlies the jury's breach and proximate cause findings.
The methodological insight that engenders this conception concerns the "self-reflexive" nature of the court's engagement with questions of law, in particular the duty question. While the community asks the first-order question what is the obligation we owe or should owe one another, the court self-reflexively addresses the higher-order questions of how it should rule on the duty issue, and what will be the impact of its ruling on the community and society. At those times, courts implicitly, and sometimes explicitly, speak of themselves and grapple with the judicial system's institutional role, legitimacy, and limitations. Appreciating the court's self-reflexive character enables us to show why, as an analytic matter, the inclusion of foreseeability in the court's duty analysis does not usurp the jury's role. This insight also grounds the new argument presented in this article for why duty arises from policy rather than obligation.
INTRODUCTION II. OVERVIEW OF THE DUTY DEBATE III. A CRITIQUE OF GOLDBERG AND ZIPURSKY'S VERY RELATIONAL VIEW OF DUTY A. Goldberg and Zipursky's Obligation-Centered View of Duty B. A New Argument In Favor of the Policy Approach to Duty IV. A CRITIQUE OF ESPER AND KEATING'S SOMEWHAT RELATIONAL VIEW OF DUTY A. Esper and Keating's Weak Relational View of Duty B. Why the Obligation View Increases Particularized Duty Rulings C. Efficient, Particularized Duty Analysis is Not All Bad.. D. Accounting for the Courts' Self-Reflexiveness V. A CRITIQUE OF CARDI AND GREEN'S NON-RELATIONAL VIEW OF DUTY A. Cardi and Green's Alignment with the Restatement (Third) of Torts B. Rehabilitating Foreseeability--Why the Third Restatement's Vision of Duty is Incoherent C. Why Foreseeability in Duty Does Not Encroach Upon the Jury's Role VI. CONCLUSION I. INTRODUCTION
After long inattention, the concept of duty in tort law is gaining currency. (1) Some scholars have been waging subtle yet turbulent "duty wars." (2) Outside of the academy, tort and products liability litigants and their amicus supporters, sometimes motivated by the scholarship, increasingly dispute the issues of whether one actor owes another a duty and of which duty standard to apply. (3) The prior and logically independent question is how to decide these matters, a question that must provoke reflection about the institutional concerns characterizing duty analysis, and decision-making processes generally. This sort of reflection has thus far been meager in the duty wars.
Aiming to correct this methodological lapse, this article proceeds critically and divides according to the three main camps in the contest over the nature of duty in tort law. The teams leading much of the duty debate line up in the following way. John C.P. Goldberg and Benjamin C. Zipursky start with the position that duty is primarily an obligation to provide care with regard to individuals specifically resembling the plaintiff and that, by virtue of this strongly relational and obligation-centered view, the duty concept is an essential and robust component in tort controversies. (4) Dilan A. Esper and Gregory C. Keating offer a more balanced counterpoint, arguing that instrumental considerations such as deterrence play a somewhat greater role in duty determinations than Goldberg and Zipursky allow, and that duty is only weakly relational--and should not be applied in an overly particularized manner--because it runs broadly to any individuals who may foreseeably be harmed. (5) Meanwhile, W. Jonathan Cardi and Michael D. Green follow the lead of the Restatement (Third) of Torts in saying that duty derives from a mixture of obligation and instrumental objectives, but that foreseeability should be purged from the analysis. (6)
This article summons its new perspective about the legal decision-making process by critiquing the approaches taken by Goldberg and Zipursky, Esper and Keating, and Cardi and Green. (7) As an explanatory prelude, Part II offers an overview of the larger discussion thus far in progress, and of several of the pivotal dualities that have coursed through the debate. (8) Many of the issues discussed in this Part are likely to remain unresolved in the long run notwithstanding the various commentators' best efforts.
The divide will remain between those emphasizing that duty must consist in natural obligation flowing intelligibly out of the fabric of our liberal tradition, (9) and those reducing duty, at least to some significant extent, to a discretionary policy outcome, one that is often aimed at wealth- or utility-maximization. (10) Part III expresses dissatisfaction with Goldberg and Zipursky's adherence to the former approach. (11) That Part offers a new perspective on why legal duty, as courts announce it, is not constituted primarily by moral obligation, but is most clearly explained as an instrumental, policy-driven element in tort cases. (12) This argument finds grounding in the article's methodological thesis that courts' decision-making process is self-reflexive at some important level, and hence that in deciding duty courts say something about law's institutional role, capacities, and limitations.
Part IV critiques the views offered by the second duty team, Esper and Keating, and shows why their approach similarly under appreciates the ways in which judicial law articulation expresses the tort system's regulatory and efficiency aims. (13) The emerging positive analysis explains that the judicial system's division of labor as between courts, which decide duty, and juries, which address breach, is best understood in terms of the self-reflexive roles assumed on each side. (14) Juries as well as courts, in other words, speak of themselves and of their communities and institutions, respectively. While helping us to generally navigate the duty dilemma, this understanding provides an important analytical tool for explaining, for instance, why the sort of particularized duty rulings that so vex Esper and Keating may sometimes be appropriate. (15)
The team of Cardi and Green have been the most eloquent spokespersons on behalf of the duty conception announced in the Restatement (Third) of Torts. (16) Their principal focus has been on the most clawing dispute in the duty wars, namely, the role of foreseeability in the duty determination. (17) In support of the Third Restatement's perspective, Cardi and Green maintain that the relational view of duty--one that includes the foreseeability subelement--is "inferior" for a number of reasons. (18) Part V, centering on a critique of Cardi and Green's work, shows that the Restatement's purging of foreseeability renders its conception of duty incoherent. (19) Appreciating courts' self-reflexive character enables us to show why, as an analytic matter, the inclusion of foreseeability in the judicial duty analysis does not usurp the jury's role.
The main hope for this article is that the framework for a coherent, positive conception of duty emerges from the critique of the main duty war camps. The article concludes that the courts' grappling with duty is ultimately instrumental and policy-laden. The foreseeability factor provides the court with a central policy constituent within the larger duty determination. Exclusion of this factor would be arbitrary and loose the duty analysis in tort law from its moorings.
OVERVIEW OF THE DUTY DEBATE
Because duty is considered strictly a legal affair, the court rather than the fact-finder decides both how and what to decide. (20) This helps judges manage the legal system. But some say such large discretion also reduces duty to a "pious aphorism" detached from principled analysis. (21) If judges' threshold rulings know no bounds, then perhaps it is best to cull out inappropriate factors they may .consider, and perhaps foreseeability is a prime candidate. Foreseeability, after all, appears to be inherently fact- and case-specific, and hence not conducive to development of the sort of general principles with which duty is concerned. (22) The Restatement (Third) of Torts aligns with these intuitions. (23)
The controversy over the role of foreseeability in tort duty goes back to Palsgraf, (24) which smeared the cat out in equal parts, sort of. (25) Cardozo's majority held that lack of foreseeability meant no duty. (26) Judge Andrews objected that "lilt is the act itself, not the intent of the actor, that is important." (27) Getting scienter out of the discussion would have left open the possibility that the railroad was liable for all harm caused by its agents' negligence. (28) But, especially in the contemporary tort reform climate, courts also extract foreseeability from duty in rationalizing no-duty outcomes. (29)
Eliminating the foreseeability sub-element of the duty analysis is a facially neutral move. (30) The logical pull resulting from such a doctrinal shift, however, is generally toward diminished accountability. Consider first a duty standard that includes the foreseeability...