Search the Issue Archive

Volume40
MonthNovember
Year2003
TitleRethinking Injury and Proximate Cause
Author(s)John C.P. Goldberg
First Page1,315
AbstractInjury and proximate cause form two components of a plaintiff's prima facie negligence case. Although equals in this sense, they have received starkly different treatment at the hands of judges and scholars. Proximate cause has long attracted attention, yet has also managed to defy repeated efforts at characterization and explanation. Injury by contrast, seems to have been largely ignored.

One of the many virtues of professor Perry's paper is that it prompts reconsideration of this disparate treatment from both ends. By offering a subtle and rich account of the related concept of "harm," Perry permits us to see that the concept of "injury" is normative, contestable, and therefore laden with interesting questions. Likewise, his analysis provides a springboard from which to launch an inquiry into proximate cause. In this Commentary, I will undertake both of these projects, first, by reviewing and elaborating Professor Perry's thoughtful analysis of harm, then by analyzing the distinction between the concepts of harm and injury, and finally by sketching an account of proximate cause that can help explain why it has a legitimate role to play in negligence law.