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Copyright (c) 1998 Fordham Law Review
Fordham Law Review

Article: LEGAL MALPRACTICE AND THE STRUCTURE OF NEGLIGENCE LAW

November, 1998

67 Fordham L. Rev. 649

Author

Benjamin C. Zipursky *

Excerpt



Introduction
 
THE legal academy is currently edified by interdisciplinary unions - 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 elucidate its proper role in society, and to illuminate our profession's current 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 accepted model of negligence law, put forth in William S. Prosser's Hornbook, 1 cannot adequately interpret the key concepts of duty and breach in the law of attorney malpractice. Though particularly striking when viewed in the context of attorney negligence, these deficiencies pervade the Prosserian model in all areas of negligence law. Building upon earlier work of my own and with John Goldberg 2 that introduces a "relational" model of negligence law to replace the Pros serian model, this Article argues that the relational model ...
 
 
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