Document Type


Publication Date



Dean Prosser wrote Palsgraf Revisited because he believed that courts had inadequate standards to make predictable and consistent duty decisions. He expressed his discontent by providing a thumbnail description of decisions that appeared to him to be rationally irreconcilable. Acknowledging that Cardozo's powerful Palsgraf imagery had been persuasive to most courts, Prosser fastened upon it as the focus of his dissatisfaction. Hence, Prosser provided us Palsgraf Revisited.

I fault Prosser for looking for a nirvana that has no existence in law. Rarely will a court make a difficult, fact based, policy driven decision that all thoughtful legal commentators will endorse. I myself have expressed dissatisfaction with Smaxwell. Furthermore, few commentators would ever be possessed of the full knowledge about the cases that was available to the judges who made the decisions. Hence, summarizing a list of apparently irreconcilable cases is hardly proof that either the standards or the processes under which the cases were decided were faulty. In the course of time, any system that employs the judgment of human decision makers - call it discretion - as to whether an actor should be held liable for harm caused by non-intentional acts will produce an array of apparently inconsistent outcomes. Judge Cardozo knew as much. "Life will have to be made over and human nature transformed" before perfect consistency in the exercise of judgment would occur. It will also produce a predominance of predictable outcomes that is silently accepted without comment.

Included in

Torts Commons