These are all existing criticisms,270 and I am not trying to add to the stock of criticism here.271 My point is that the Palsgraf perspective is only impelled to engage in such strained interpretive maneuvers because of its fundamental assumption that tort liability is essentially about redressing wrongs. All of these doctrines make more sense if tort liability seeks to enforce remedial moral liability, and remedial moral liability is grounded in a defendant’s moral responsibility for infringing the plaintiff’s rights against injury. In the preceding cases, of course, the defendant does not exhibit the sort of fault-based moral responsibility that is tracked by the tort of negligence. But an agent’s exercise of her responsible agency can sometimes be morally significant for reasons other than its wrongfulness and culpability: because (say) the agent has responsibly decided to pose a substantial and nonreciprocal risk of infringing others’ rights against injury272 or because she has innocently engaged in a certain sort of collective enterprise with someone who has culpably and wrongfully infringed the rights of another person.273
Фото: Lehtikuva / Antti Hamalainen / Reuters
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