Two by Goldberg & Zipursky

John Goldberg & Ben Zipursky have posted two pieces to SSRN.  First, from this year’s AALS Torts Panel, The Myths of MacPherson.  The abstract provides:

For a symposium marking the centenary of Macpherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, although they have been largely fostered by progressives, the myths lend support to the cause of modern tort reform. By contrast, an accurate appreciation of MacPherson’s virtues permits an understanding of negligence, tort law, and common law adjudication that provides grounds for resisting regressive reforms.

Next, Triangular Torts and Fiduciary Duties.  The abstract provides:

When a professional is negligent in providing services to her client or patient, third parties are sometimes harmed. “Triangular torts,” as we call them, are negligence claims brought against professionals by such third parties. One common example involves a father suing a therapist for inducing his daughter to have false memories of childhood abuse, thereby causing him emotional harm. Another involves a nephew suing a lawyer for incorrectly drafting his aunt’s will, thereby causing him financial loss. Despite the general decline of privity limits on negligence liability, courts frequently reject triangular tort claims, ruling that professionals do not owe duties of care to third parties. In this chapter, we explain when such rulings are warranted — and when they are not. The answer turns on whether the recognition of a duty of care to the third party is consistent with the professional’s fiduciary duty of loyalty to the client or patient.

(Via Solum/LTB)