Palsgraf Revisited

Perhaps the most celebrated of all tort cases is Palsgraf v. Long Island Railroad Company. Certainly it is one of the most controversial. Thirteen judges in all passed upon the case, and seven of them were for the plaintiff, at least in the sense that they considered that the issue was one to be left to the jury. Four of the remaining six, sitting on the Court of Appeals of New York, had the :final word, and they set aside the verdict, dismissed the complaint, and ordered judgment for the defendant. The Advisers of the Restatement of Torts debated the question long and vigorously and approved the case by a narrowly divided vote. Subsequent decisions, even when they cite Palsgraf, have remained in a state of disagreement and confusion, and the problem presented cannot be said by any means to be settled and disposed of. The legal writers have galloped off in all directions, in a tangle of duty, negligence, foresight, hindsight, direct and intervening causes, the division and classification of interests and injuries, liability without fault or in excess of fault, social policy, the balancing of various claims to protection or immunity, and everything else that inevitably becomes involved in any discussion of proximate cause

INTERSTATE PUBLICATION

It is an amazing and a sobering thought that by the utterance of a single ill-considered word a man may today commit forty-nine separate torts, for each of which he may be severally liable, in as many jurisdictions within the continental limits of the United States alone, and without regard to any additional liability he may incur in the possessions and territories and in foreign countries. It calls to mind at once in all solemnity those first words that ever were sent over an interstate wire, and later to the moon. What, indeed, hath God wrought! Little less astonishing, although on a definitely lower plane, is the state of the law which man hath wrought. It is the purpose of this paper to consider the complex and confusing problem of tort liability for interstate publication, and to inquire whether there is a solution, and whether we may not be driven to find one. As a background for what follows, let us begin by stating a case

Misrepresentation and Third Persons

The assault upon the citadel of privity is proceeding in these days apace. So said Cardozo in 1931, and he has been much quoted since. But the case\u27 in which he said it was one of misrepresentation causing pecuniary loss to a third person who acted in reliance upon it, but to whom it was not made. It is in this area that the assault upon the citadel has made, during the intervening thirty-five years, the least headway, and has broken down into a tangle of more or less unconnected struggles which are apparently making no great progress in any definite direction. It is here that there is still the greatest uncertainty, and even confusion. It is the purpose of this discussion to suggest that there are a great many more cases dealing with the problem than is generally realized, that there is a pattern to be discerned from the decisions, and that some conclusions may be drawn