Roger Traynor, the Legal Process School, and Enterprise Liability

Roger Traynor, who served on the California Supreme Court from 1940 to 1970, the last five years as Chief Justice, was one of America’s great judges. This Article compares Traynor’s view of the lawmaking role of courts with the dominant jurisprudential perspective of mainstream legal scholars at time, that of the legal process school. Today it is widely believed that Traynor was a “firm advocate of the legal process” approach to judicial lawmaking. The thesis of this Article, however, is that Traynor was a legal realist whose jurisprudence of what Judge Richard Posner has termed legal pragmatism was at odds with the legal process approach. In particular, Traynor’s 1960s rewriting of tort law to expand avenues for victim compensation, hailed as a “renaissance in the common law” by the editors of the Harvard Law Review, had been opposed by the legal process scholars who insisted that judges base their decisions on “neutral principles.” To Traynor, however, “neutral principles” were nothing more than meaningless “magic words” and an impediment to needed reform of the common law and, in particular, judicial adoption of what is now known as the theory of enterprise liability. I have previously written about this subject in How Great Judges Think: Judges Richard Posner, Henry Friendly, and Roger Traynor on Judicial Lawmaking.The present Article sharpens the diffuse sketch in that piece by focusing solely on Traynor and on the two articles he considered his most important. The first, the 1956 Law and Social Change in a Democratic Society, appeared two years after the Supreme Court’s 1954 decision in Brown v. Board of Educationand defended judicial lawmaking against legal formalists who denied that judges are lawmakers. The second, the 1961 No Magic Words Can Do It Justice, directly targeted iconic 1959 articles by legal process scholars Henry Hart and Herbert Wechsler. The Hart and Wechsler articles had criticized the lawmaking of the Warren Court, including the Court’s landmark decision in Brown v. Board of Education, for its failure to conform to their demand for neutral principles. In response, Traynor wrote, “What did Professor Wechsler have in mind beyond “magic words,” comparing Wechsler to “desperate . . . students at examination time who search for “magic words” among mounting stacks . . . .” In his 2016 book, Divergent Paths, Judge Posner writes that my Buffalo piece presents an “accurate genealogy of legal realism” and legal pragmatism from the mid-nineteenth century to the present day. The present Article presents, for the first time, a genealogy of the common law aspect of legal process jurisprudence throughout the twentieth century, from Roscoe Pound, through Justice Louis Brandeis, James Landis, and (later Justice) Felix Frankfurter, to Hart and Wechsler. Legal process scholarship is seen today to have been a public law jurisprudence, concerned with subjects such as the procedures for lawmaking by administrative agencies. My genealogy explains, however, that it was also a common law jurisprudence. And it was this jurisprudence that stood as an obstacle to courts adopting the enterprise liability agenda. The Article closes by demonstrating the successes of legal pragmatism in the courts both through the example of judicial adoption of the comparative rule and by an analysis of the torts decisions of both the liberal (1960–1986) and conservative (1986–2018) iterations of the California Supreme Court—and offers in a Postscript, a preview of the jurisprudence of the post-2019 seven member court that now consists of four justices appointed by Democratic Governor Jerry Brown

The Missing Normative Dimension in Brian Leiter\u27s Reconstructed Legal Realism

Legal Realism has undergone a revitalization in academia. In a series of articles over the past decade and a half, and in a 2007 book, Brian Leiter has offered a philosophical reconstruction of Legal Realism... In the forthcoming Article, I will seek to clarify further the normative dimension of Legal Realism. I will suggest that it is a mistake to divide Legal Realists into quietist camps. This is because these terms refer to two distinct phenomena. Nonquetism in a view of the lawmaking role: judges are legislators-they make law and policy plays a role in their lawmaking. Quietism reflects a conclusion: it makes no sense to give normative advice. In the present Article, I have continued to use these terms as Leiter uses them so as not to confuse the analysis and because in the context of this Article they prove adequate

Clarifying the Normative Dimension of Legal Realism: The Example of Holmes\u27s The Path of the Law

In a recently published article, I examined the Legal Realism found in Leon Green\u27s and Karl Llewellyn\u27s tort scholarship. Brian Leiter had previously presented an insightful philosophical reconstruction of Legal Realism. In articulating what he sees as the descriptive and normative aspects of Legal Realism, Leiter drew most of his examples from the field of commercial law, which was the main focus of Llewellyn\u27s scholarship. In this context he wrote that most Legal Realists made a descriptive claim about judicial decisions or, more specifically, decisions of appellate courts. Stated in its most succinct form, this descriptive claim was that judicial decisions fall into discernible patterns, correlated with the underlying factual scenarios of disputes (or situation types ), as opposed to formal legal rules. My examination of Green\u27s and Llewellyn\u27s tort scholarship confirmed this thesis

Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability

The theory of enterprise liability is associated with the tort lawmaking of the liberal California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This Article explains that early incarnations of each can be found in the works of four giants in American law: Justice Oliver Wendell Holmes, Judge—later Justice—Benjamin Cardozo, and the Legal Realists Leon Green and Karl Llewellyn. As will be seen, these scholars and judges shared a common view of the lawmaking role of courts. Stated simply, this shared view was that judges are lawmakers and policy does—and should—shape their lawmaking. If this formulation sounds familiar, it is because of its similarity to Judge Richard Posner’s legal pragmatism, which Posner himself has linked to Holmes and Cardozo. Posner’s legal pragmatist believes that at times “judges in our system are legislators as well as adjudicators” and that policy judgments are at the core of their lawmaking. A particular focus of this Article will be judicial lawmaking in the common law and, more specifically, tort law. This focus reveals that we can see in the works of these great judges and scholars the origins of the enterprise liability doctrines adopted by courts in recent decades, in particular, the doctrine of strict products liability and the policy-based expansion of liability within the negligence system

Clarifying Duty: California\u27s No-Duty-for-Sports Regime

In this Article, we hope to untangle the confused no-duty-for-sports rules the court has created over the past decade and a half. We will argue that much of this confusion stems from the court\u27s carrying over terminology and concepts of the traditional assumption of the risk defense. In Part II, we set forth the law of assumption of the risk as it stood prior to the court\u27s decision in Knight. Parts III through V then carefully trace the adoption and elaboration of the no-duty-for-sports doctrine. These Parts attempt to expose the roots of the confusion that surround this doctrine. In Part VI, we suggest ways in which the court could clarify duty analysis in this area while retaining the basic analytic and policy framework laid out in Knight. In Part VII, the conclusion, we briefly review the steps the court could take to achieve this goal

Foreword, Symposium on the American Law Institute\u27s Reporters\u27 Study on Enterprise Responsibility for Personal Injury

This Foreword explains the topic of this symposium, the American Law Institute\u27s Reporters\u27 Study on Enterprise Responsibility for Personal Injury, published in 1991. This Study assesses the American tort system a quarter-century after the appearance of the ALI\u27s Restatement (Second) of Torts. The authors of the Foreword discuss the two most striking developments in personal injury law in that time: the adoption of strict products liability and the enactment of no-fault automobile compensation plans. The Foreword addresses the principal focus of the Articles to follow, which are the diverse reforms suggested by the Study, including products liability, medical no-fault, and damages proposals

An Enterprise (No-Fault) Liability Suitable for Judicial Adoption - With a Draft Judicial Opinion

In this Article, the authors propose that courts recognize an enterprise liability applicable to persons injured on the premises of supermarkets. In contrast to strict products liability, victim compensation under their proposal would not turn on whether the supermarket\u27s premises could be characterized as dangerously defective. Instead, the proposed doctrine would impose a strict enterprise liability for personal injuries arising out of the use of the supermarket\u27s premises by entrants on those premises. The resulting doctrine would avoid the intractable - and litigation producing - defect problem, while holding down costs - and litigation - by limiting recoverable damages