Harvard Law Review
This Article utilizes civil recourse theory along with a pragmatic conceptualist methodology to solve three problems in tort law: one on Palsgraf v. Long Island Railroad Co., one on punitive damages (as seen in the Supreme Court’s struggles with Philip Morris v. Williams), and one on federal preemption (as seen in the Supreme Court’s 4-4 deadlock in Warner-Lambert Company v. Kent). Confusion has been generated by a failure to recognize that -- despite the many aspects of tort law that render it importantly public -- there is something distinctively private about the common law of torts. When one firmly rejects a private-attorney general model of tort law, solutions to all three problems fall into place, demonstrating the power and fecundity of civil recourse theory and pragmatic conceptualism.
Benjamin C. Zipursky,
Palsgraf, Punitive Damages, and Preemption, 125 Harv. L. Rev. 1757
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/669