Shauna Van Praagh encourages a re-reading of Palsgraf
March 25, 2024
Professor Shauna Van Praagh delivered the Tort Law Research Group’s second Public Lecture of the 2023-2024 academic year on Tuesday, February 13, 2023.
In her talk, “Read it Again: Palsgraf as Guide for the Perplexed,” Professor Van Praagh encouraged the audience of students, faculty, and members of the bar to reread the famous 1928 New York Court of Appeals case in an integrated and transsystemic way.
Both Cardozo CJ’s majority opinion and Andrews J’s dissent reveal civilian and common law principles and methodologies. In structure, Cardozo’s analysis lines up with the common law’s understanding of negligence as relational—the right of the plaintiff defines the duty of the defendant—while Andrews’ use of proximate cause as the sole delineating condition of liability mirrors the structure of articles of civilian codes like articles 1457 and 1607 of the Civil Code of Québec. By contrast, Cardozo’s methodology, with its use of minimal facts and recourse to general principles, has a civilian flavor, while Andrews’ approach, in which he entertains numerous hypotheticals and invites his reader to think through the messy work of grounding responsibility, would be at home in a common law classroom. Looking at cases like Palsgraf through a transsystemic lens, Van Praagh suggested, reveals how opposing approaches to tort law’s most significant questions such as the scope of responsibility can coexist not only within the same legal system but also within the same judgment.
Shauna Van Praagh is a professor in the Faculty of Law at McGill University where she has taught and researched since 1993. She also serves as the President of the Law Commission of Canada. She has taught at Columbia Law School (1990-1992) and King’s College London (1992-1993), and was a visiting scholar at Universidad Torcuato Di Tella in Buenos Aires (2010-2011), Universitat de Barcelona, and Hebrew University Jerusalem (2018). Prior to joining University of McGill, Professor Van Praagh clerked for The Right Honourable Brian Dickson, Chief Justice of Canada, from 1989 to 1990.
