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Reconstructing Foreseeability

Cardi, Jonathan W.

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abstract
This Article is the second of a two-part endeavor assessing the use of foreseeability in negligence law, and arguing against its ever-expanding role in the element of duty. The first article, Purging Foreseeability, urged courts to adopt the general duty provisions of the proposed Restatement (Third) of Torts—provisions that would purge duty of foreseeability-based considerations. Courts and scholars have resisted the Restatement’s attempts to rid duty of foreseeability out of a jurisprudential view that foreseeability simply “belongs” there. This Article urges that the conceptual work done by foreseeability also might fit wholly and seamlessly within the elements of breach and proximate cause. In proving that foreseeability’s conceptual fit is thus indeterminate, the Article aims to refocus the debate on whether the court or the jury is the better arbiter of foreseeability—a matter that courts are reluctant to discuss and scholars have largely ignored.
subject
Research Subject Categories::LAW/JURISPRUDENCE
Tort Law
citation
46 (volume)
contributor
Cardi, Jonathan W. (author)
date
2016-04-28T19:30:56Z (accessioned)
2016-04-28T19:30:56Z (available)
2005 (issued)
identifier
46 B.C. L. REV. 921-88 (2005) (citation)
http://hdl.handle.net/10339/58896 (uri)
language
en_US (iso)
source
Boston College Law Review
title
Reconstructing Foreseeability
type
Article

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