Legal Malpractice and the Structure of Negligence Law
![handle is hein.journals/flr67 and id is 665 raw text is: LEGAL MALPRACTICE AND THE
STRUCTURE OF NEGLIGENCE LAW
Benjamin C. Zipursky*
INTRODUCTION
T HE legal academy is currently edified by interdisciplinary un-
ions-law and economics, law and philosophy, law and science,
law and literature, to name but a few. At the same time, however, it
overlooks important connections between different subdivisions
within legal scholarship. This symposium is intradisciplinary in just
that sense. It aims to shed light on familiar substantive areas of law by
looking at them through the prism of legal and ethical problems that
concern scholars of the legal profession. One hopes that the light shed
on other areas will reflect back on the profession itself, helping to elu-
cidate its proper role in society, and to illuminate our profession's cur-
rent struggle to retain self-esteem in the face of mounting external and
internal criticism.
This Article explores both the law of torts and the legal profession
by focusing on an important area of overlap between the two-the
law of attorney malpractice. I shall argue that the most widely ac-
cepted model of negligence law, put forth in William S. Prosser's
Hornbook, cannot adequately interpret the key concepts of duty and
breach in the law of attorney malpractice. Though particularly strik-
ing when viewed in the context of attorney negligence, these deficien-
cies pervade the Prosserian model in all areas of negligence law.
Building upon earlier work of my own and with John Goldberg2 that
introduces a relational model of negligence law to replace the Pros-
* Associate Professor, Fordham University School of Law, B.A. 1982,
Swarthmore College; Ph.D. (Philosophy) 1987, University of Pittsburgh; J.D. 1991.
New York University. I am grateful to Mary Daly, John Goldberg, Bruce Green,
Michael Martin, Russell Pearce, Arthur Ripstein, and Tanina Rostain for helpful com-
ments on previous drafts, and to Maria Rivera and Allison Lucas for their research
assistance. This research was supported by a Fordham University Summer Research
Grant.
1. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts (5th ed.
1984) [hereinafter Prosser & Keeton]. Because this treatise is a revision of what was
originally written by Prosser alone, William S. Prosser, Handbook on the Law of Torts
(1941) [hereinafter Prosser, Handbook], I will typically refer to the view expressed
therein as Prosser's view, even though different scholars have edited the revised
version.
2. See Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts,
51 Vand. L. Rev. 1 (1998) (identifying and analyzing the idea of rights, duties, and
relational wrongs in tort law); John C.P. Goldberg & Benjamin C. Zipursky, The
Moral of MacPherson, 147 U. Pa. L. Rev. 1733 (1998) (offering a broad critique of the
Prosserian conception of duty in negligence law and developing the relational model);
see also Arthur Ripstein & Benjamin C. Zipursky, Corrective Justice in an Age of
Mass Torts, in Philosophy in the U.S. Law of Torts (Gerald Postema ed., forthcoming
1998) (using a relational conception of duty to explain the causation requirement).](ViewImageLocal?handle=hein.journals/flr67&div=28&collection=&method=preview&ext=.png&size=3)
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