symbolic derivatives and the rust rewrite of RE#
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Indeed, the idea that culpability in any form should bear upon proximate cause is mysterious if we adopt the Palsgraf perspective. Recall its central interpretive commitment: that the elements of each tort together define a qualified relational legal wrong of injury, which consists in the breach of a qualified relational legal duty of non-injury, and that each such legal duty and wrong encode a moral duty and moral wrong recognized by the law.168 On this view, the proximate cause element of the negligence tort must be located within the content of the qualified relational duty of non-injury that the negligence tort defines. For this reason, accounting for the culpability-sensitivity of proximate cause determinations requires characterizing the content of this relational duty in a baroque way: It must be characterized as a duty not to foreseeably injure another person by breaching one’s duty to take care not to injure him, where one’s level of culpability in breaching that duty of care determines whether the resulting injury counts as sufficiently foreseeable that one has breached the qualified duty of non-injury in which the duty of care is embedded.
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