The Palsgraf perspective’s organizing interpretive commitment is that relational duties and wrongs — rather than impersonal duties and wrongs, or incentives for promoting societal interests or impersonal values — lie at the heart of tort law. Today, its scholarly defenders fall into two major camps. Pragmatic constructivists such as Dean John Goldberg and Professor Benjamin Zipursky believe that each tort — negligence, battery, defamation, and so on — defines a sort of relational legal wrong, which in turn encodes (though not precisely) a certain sort of relational moral wrong.68 Pragmatic constructivists tend to maintain a sort of studious philosophical quietism about the nature and content of these relational moral wrongs.69 Their focus is instead on elucidating the norms and practices of the courts and the legal profession, through which tort doctrine draws upon and roughly encodes relational moral wrongs recognized in ordinary moral life.70
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The interpretive task is to explain why, unlike battery or negligence, property torts such as trespass and conversion do impose liability for harm without any inquiry into fault or foreseeability. As judges have recognized, dispensing with any such inquiry can offend against “notions of ‘elemental justice.’”301 For example, if in the preceding hypothetical the defendant had burned a log of wood that unforeseeably belonged to the plaintiff, rather than an apparent log of wood that unforeseeably constituted the plaintiff’s body, the law would hold the defendant liable. Rather than conjuring up a strained sort of moral wrong to supply the explanation of this starkly counterintuitive position, the better view is that the explanation does not sound in wrongdoing or responsibility at all.