This Article argues that the term is often an empty vessel, into which the courts can pour multiple meanings. That being the case, we do not consider proximate cause unless we have established actual cause. (Cardozo dissented from the decision on procedural grounds.) He set forth a re-examination of the negligence concept with the hope of replacing the usual formulas and their "shifting meanings" with a … The following year, in striking down the Bituminous Coal Conservation Act, the Court accepted Cardozo’s proximate cause test. Over the past decade, several city governments across the country have filed suits against banks pursuant to the Fair Housing Act seeking redress for municipal damages caused by the banks’ discriminatory lending practices. Palsgraf’s notoriety as a proximate cause case is ironic, to say the least, given that Chief Judge Benjamin Cardozo’s majority opinion expressly disclaims all reliance on causation in overturning the plaintiff’s verdict (“[t]he law of causation, remote or proximate, is thus foreign to the case before us”). Proximate cause is a notoriously flexible and theoretically incon-sistent concept. care," or that the defendant's negligence was not a "proximate cause" of the plaintiff's injury. The majority Cardozo view held that it should be analyzed under Duty, while Andrews held that Duty is a broad concept and unforeseeability should be discussed under proximate cause. POUND, LEHMAN and KELLOGG, JJ., concur with CARDOZO, Ch. But the trainmen's negligence was close enough in time and space, he wrote, to be considered the ''proximate cause'' of Mrs. Palsgraf's injury. Proximate cause is harder to pin down; whether it’s been met can become a jury issue when a judge thinks it’s not an easy call. A Flood—Not a Ripple—of Harm: Proximate Cause Under the Fair Housing Act. Proximate cause is harder to pin down; whether it’s been met can become a jury issue when a judge thinks it’s not an easy call. 28 Id . The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. It … For Cardozo, proximate cause could be dealt with as an issue of foreseeability. (Indeed, in the celebrated Palsgraf case for today, the dueling opinions differ on whether the hiccup found within the fact pattern is best categorized as one of duty (Cardozo) or proximate cause (Andrews).) Rejection of the closest in time/distance test may have been one of the ideas the author or authors of California Insurance Code had in mind when they drafted these sections: The issue in the case is whether the unforeseeable plaintiff will be analyzed under duty or proximate cause. 27 It was not enough for a defendant’s negligence to foreseeably result in some kind of injury to some kind of plaintiff; the particular group of harmed individuals and the particular type of injury must also have been foreseeable. However, proximate cause is an anachronism because in modern contract analysis proximate cause means something different from the opinion espoused by Justice Cardozo. The Strange State of Legal Education Generations of law students thus came to be educated that Palsgraf is a case about proximate cause — when it is not. Mr. Justice Cardozo, speaking for the majority, preferred the first approach. 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