TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Sunday, September 3, 2006

McClurg: In Defense of the Common Law: McClurg’s Response to Moreland and Frank

This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.

Andrew McClurg is the Herbert Herff Chair of Excellence in Law, Cecil C. Humphreys School of Law, The University of Memphis.

Thanks to Michael Moreland and Ted Frank for their thoughtful replies to my argument that law professors should be spending more time talking about the process of tort reform, coupled with my more specific concern that today’s students pass through law school largely unaware of the radical pace at which statutory and administrative law are usurping the common law tort tradition.

Who’s better-suited to write tort law: judges or legislators? The answer to this central question, as Michael suggests, is that it depends on the particular issue. I don’t oppose all legislative tort reform. Legislative solutions may be appropriate for certain complex issues or situations when it has become apparent they are beyond the capacity of effective common law adjudication. Asbestos and class actions, mentioned by Michael and Ted, are probably good examples.

If only tort reform were so limited. Neither Michael nor Ted mentions the “silent tort reform” process through which federal agencies are preempting or attempting to preempt state common law through administrative regulations. Professor David Owen calls preemption the most important issue in products liability law today, yet the administrative preemption process, which has escalated dramatically in 2006, remains invisible to most Americans, including Torts students.

In the legislative arena, dozens, perhaps even hundreds, of tort reform bills are introduced in state legislatures annually. Many of them pass. Approximately half of U.S. states have statutes capping noneconomic damages. A majority of states have legislatively abrogated or substantially modified the common law doctrine of joint and several liability. About half of states have abolished or modified the collateral source rule.

The list goes on and on. The main point of my initial post was not whether these changes are good or bad, although I confess to thinking some of them are bad, particularly because none of the measures that reduce plaintiffs’ damages address the pink elephant in the living room that U.S. tort plaintiffs have to foot the bill for attorneys’ fees and litigation costs. Rather, my complaint was that these rapid and fundamental alterations in how tort law is made are escaping significant scrutiny in legal education.

The influence factor. Common law decision-making suffers from deficiencies (it’s ad hoc, inefficient), but so does legislative decision-making. Michael and Ted are critical of judges making tort law, but have they given fair consideration to problems in the legislative tort reform process? Are they convinced that legislative tort reform is made for the right reasons after due consideration of all relevant issues?

Back in Florida, I attended a party in Miami thrown by and for lobbyists where I struck up a conversation with one of the most powerful lobbyists in the state. Making forced small talk, I asked, “What percent of legislative decisions are made on the merits?” His depressing answer: “Zero.”

Hopefully, he was exaggerating, but I’d be curious to get Michael’s insight from working in politics about who drafts most tort reform legislation. At least at the state level, my understanding is that most of the bills are drafted by lobbyists or other industry representatives. Correct me if I’m wrong.

Ted’s example of Roger Traynor. Ted mentions, with apparent disapproval, Justice Roger Traynor of the California Supreme Court, who helped introduce strict tort liability for defective products in Greenman v. Yuba Power Products, Inc. (Cal. 1963). I appreciate that reference because I believe it supports my position that the slow, organic nature of common law evolution has advantages over rapid, ill-considered, one-size-fits-all legislative changes.

If I could be King of Torts for one day and issue one proclamation to legislators regarding tort reform, it would be: “Slow down!” Let’s give more in-depth and balanced consideration to the issues before continuing to jettison common law doctrines that, in some instances, took more than a century to evolve.

The common law adoption of strict products liability was a gradual process that occurred over a period of decades. Traynor himself first advocated for strict liability nineteen years earlier in Escola v. Coca-Cola Bottling Co. (Cal. 1944). The adoption of strict liability hardly was a precipitous action by one judge. By the time Greenman was decided, other courts already were imposing strict liability “in contract.” Traynor essentially said let’s just call it what it really is: strict liability in tort.

One advantage of the common law system is that when courts do get something wrong, there’s an opportunity to correct the mistake. To the contrary, once a statute has found its way into the books, removing it is practically impossible. In the case of strict liability, however, although Michael and Ted may disagree, history has shown that the courts got it right, as evidenced by the fact that most economically developed legal systems worldwide have followed the U.S. path in imposing strict liability for injuries caused by defective products.

Ask yourself who you feel more comfortable with as a maker of tort law: great legal minds like the distinguished Roger Traynor or a group of persons who know little about tort law and most of whom are not even lawyers? Traynor is widely recognized as one of the great American jurists. In 1948, he wrote the first state supreme court opinion striking down a miscegenation law enacted, of course, by a legislature.

The common law system isn’t broken. The common law system gets all the blame, but never any credit when it functions well, which it usually does. The system isn’t flawless, of course, but no complex system of adjudication ever could be. Ted mentions using public nuisance law to take on handgun and lead paint manufacturers, but I believe most courts have rejected that theory. He mentions “wrongful birth” cases. If he’s talking about cases where persons born in an impaired condition, or their parents, sue doctors for failing to detect the condition and inform the parents so they could terminate the pregnancy (as opposed to botched vasectomy cases), my understanding is that most courts have either rejected those claims or severely limited them. Michael mentions excessive damages, but courts regularly toss out or reduce excessive damages awards. Contrary to the publicity often given to the initial award, these corrective actions usually occur with little fanfare.

“Memorial damages” as an infringement of common law tradition. Finally, Ted asks whether my proposal for memorial damages in wrongful death actions in my article Dead Sorrow [PDF] is a threat to the common law. Since wrongful death actions are exclusively creatures of statute, I would say not.

Everything I’ve said misses my original point. All of the above obscures the principal argument of my initial post, which did not focus on the merits of legislative tort reform. Rather, my post posited that torts professors should be doing more to engage students, whether they favor or oppose tort reform, to think critically about the very questions Michael, Ted, and I are discussing.

Teaching Torts | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference McClurg: In Defense of the Common Law: McClurg’s Response to Moreland and Frank:


Congress and several states, including my native Pennsylvania, have passed legislation attempting to "reform" most public nuisance litigation against handgun manufacturers out of existence. I'm still involved in pending litigation on that issue and so I can't comment about handguns at length. As for lead paint, though, it's unclear to me why public nuisance suits should be thought grist for "reform," rather than an example of the genius of the common law system. Public nuisance is a tort of very respectable vintage, the facts fit pretty comfortably within its well-established elements, and lead paint is not some victimless pseudo-problem that clever lawyers dreamed up in some conference room. The existing base of lead paint in residences is a real problem that has remained largely unsolved through alternative mechanisms.

Posted by: Peter Nordberg | Sep 3, 2006 12:33:07 PM

Post a comment