TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Sunday, October 4, 2009

Guest Blogger Frank Vandall: Justice Rewritten

I thought I would use my time as a guest blogger to discuss my forthcoming book “Justice Rewritten:  An Historical, Political and Economic Analysis of Civil Justice.”  It will be published by Oxford University Press and is scheduled for late Fall, 2010.  As you will see it touches on tobacco, guns, S.U.V.’s and the role of the American Law Institute, the Council for Tobacco Research and the American Association for Justice in the creation of law.


The theme of the book is to manifest the expansion of civil liability from 1466 to 1980, and the cessation of that growth in 1980 when corporations realized they could affect the content of the law.  The book will evaluate the creation of tort causes of action during the period of 1400-1980.  Reevaluation and limitation of those developments from 1980 to the present will be specifically considered.  A keystone case is Mac Pherson v. Buick Motor Co. (1916) because it rejects the awkward and unmanageable legal frictions, and adopts negligence as a foundational cause of action.  During the period from 1916 to 1944, the courts used numerous causes of action, such as express and implied warranty and fraud, as well as negligence, to accomplish justice and provide a means for injured consumers to recover.


The book will use products cases and policies for much of its argument.  The policies supporting the more than 500 year expansion in tort liability were forcefully presented by Judge Roger Traynor in a products case, Escola v. Coca Cola Bottling Co. (1944):


  . . . I believe the manufacturer’s negligence should no longer be singled out as the basis for a plaintiff’s right to recover in cases like the present one.  In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings . . . .  Even if there is no negligence, however public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.  It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot.  Those who suffer injury from defective products are unprepared to meet its consequences.  The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public.  If such products nevertheless find their way into the market, it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market . . . .


   . . . It is needlessly circuitous to make negligence the basis of recovery and impose what is in reality liability without negligence.  If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that responsibility openly. . . .


   . . . As handicrafts have been replaced by mass production with its great markets and transportation facilities, the close relationship between the producer and consumer of a product has been altered.  Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken of the general public.  The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trade-marks . . . .


   . . . Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark . . . .


These policies can be summarized as a shift from a balanced playing field, negligence, to one that favored injured consumers.  The strict liability foreshadowed by Traynor, was not adopted until 1962, when Traynor wrote the majority opinion in Greenman v. Yuba Power Products.  For the doctrine, he relied on the policies earlier stated in Escola.  The American Law Institute quickly followed Traynor’s lead and adopted strict liability in Section 402A, the Restatement Second of Torts, in 1964.  From 1964 to 1980 almost all states adopted the strict liability cause of action for defective products.  This wave of adoption was the most rapid and dramatic expansion in consumer protection in over 500 years.  Corporate America was bloodied, but not knocked-out by these expansions in liability.


The wake-up call for product consumers was the adoption in 1980 and proliferation of the statute of repose.  This was followed by numerous reforms in tort theory and civil procedure.  These reforms had the effect of reducing the plaintiffs’ chance to win and reducing the eventual size of the settlement or verdict.


The unique focus of the book will be, first, to argue that civil justice no longer rests on historic foundations, such as, fairness and impartiality, but has shifted to power and influence.  Reform in the law, both legislative and judicial, is today driven by financial interests, not precedent and not a neutral desire for fairness or to “make it better.”  Second, the book will examine the role of persuasive agencies, such as the American Law Institute, in reforming and shaping civil justice.  Never has it been less true that we live under the rule of law.  Congress and the courts make the law, but they are driven by those who have a large financial stake in the game.


The medium for the story presented will be reality in-fact, not theory and not philosophy.  Examples used to make points will be actual cases and enacted legislation.  One conclusion will be that economics should be taught as a required law school course.  Since law is driven by financial incentives, rather than precedent, it is appropriate to teach law and economics, more so than history and philosophy, which are vague and rarely on point.


Please let me have your comments.


--Frank J. Vandall

   Professor of Law

   Emory University School of Law

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