Monday, January 11, 2016
On Friday in New York, the Torts & Compensation Systems Section met; the Section: 1. presented the Prosser Award to Aaron Twerski; 2. conducted a panel on "MacPherson at 100;" and 3. elected a slate of officers for the coming year.
The chair, Tony Sebok, moderated the panel and presented the Prosser Award. In accepting the award, Twerski stated, "It's an incredible honor to be recognized by my colleagues to win this very prestigious award."
The panel consisted of John Goldberg & Ben Zipursky (presenting a paper together), John Witt, Franz Werro, and Anita Bernstein. Goldberg and Zipursky started the discussion by presenting three myths about MacPherson. The first myth: "Cardozo rejected privity because he embraced a nonrelational duty." In reality, Goldberg and Zipursky stated, a duty may be owed to an indefinite class of persons, but it is always a relational duty. The manufacturer owes care to those who will use its product without inspection, and who stand to be injured if the product is made without due care. The second myth: "Cardozo reached a sound result because he reasoned instrumentally, not doctrinally or morally." In reality, Goldberg and Zipursky argued that Cardozo's approach is not instrumental, but one of pragmatic conceptualism. Macpherson's rule is by far the better reading of the precedents, especially as interpreted against the background of prevailing mores. The question is "are users among those to whom manufacturers owe vigilance?" and not "will society benefit if manufacturers are subject to liability?" Third myth: "Cardozo partly effaced the line between negligence and strict liability." Instead, the focus in MacPherson is on duty and breach, but the focus in Greeman is on compensation and deterrence. Goldberg and Zipursky believe that the myths are problematic because they lead to conceptions of tort law that are problematic. A nonrelational conception of duty, they argued, slides easily into a liability rule conception of tort that overlooks the sense in which product manufacturers should regard themselves as duty-bound not to injure consumers. What should be understood as a responsibility comes to be understood as a mere potential cost. An instrumentalist approach--leads judges to analyze tort cases as calling for judicial policymaking, which in turn renders their decisions more vulnerable to overturning by the legislature (tort reform). Finally, if the difference between negligence and strict liability is overlooked, preemption of products liability law becomes more palatable and the special strengths and rationales for strict products liability law are at risk of being obliterated. Goldberg & Zipursky's message: It is mistaken to think that the way to be a progressive in tort law is to be an instrumentalist.
Next, John Witt presented an historical angle on MacPherson. He approached it by starting with a case decided five years prior: Ives v. South Buffalo Railway. In Ives, the New York Court of Appeals, speaking through William Werner, entertained the first constitutional challenge to workers' compensation. The court went through what Witt described as a "full-0n" discussion of the values at stake in the Constitution and held workers' compensation unconstitutional. The opinion was not well received; by the time of MacPherson only 2 judges remained from the Ives Court. Cardozo's opinion in MacPherson is internal to the doctrine and does not discuss "regulatory" criteria at all. This is especially striking given that automobile accidents at the time had become a significant issue and were being discussed in the same vein as industrial accidents had been before Ives. Witt wondered why Cardozo stuck to the internal approach. He offered several possibilities. One is that Cardozo was engaged in deception. He decided the case on different grounds than he used in the opinion. He realized he couldn't get away with an explicit statement (especially in light of the reaction to Ives) and so he deceived. A slightly different reason is that "purely legal" decisions have more durability. Thus, Cardozo stuck with the internal to preserve the holding for the long haul. Witt rejected these possibilities. He believes them inconsistent with Cardozo's character. In Witt's opinion, Cardozo's approach is based in a moral modesty. Commissions (like the Wainwright Commission for workers' compensation) will inevitably make mistakes. Cardozo, by not relying on such pronouncements, based his decision on more reliable, less grand, principles.
Franz Werro approached MacPherson from a comparative perspective. What influence did MacPherson have in Europe? Werro indicated MacPherson did not have much of an effect on the Continent (largely because it was not needed). It was, however, particularly important to a significant 1932 Scottish case (later adopted in English law by the House of Lords): Donoghue v. Stevenson, better known as the "Paisley snail" case. In that case, a woman was drinking a bottle of ginger beer (at a café in Paisley) when she discovered a decomposing snail in it. The woman sued the manufacturer directly and asserted a legal duty to, in essence, produce snail-free beer. The case established negligence-based liability by setting out general principles whereby one person owes a duty of care to another. The "neighbor principle" was based on whether harm was reasonably foreseeable. MacPherson served as a basis for the principles announced in Donoghue. Werro closed with 3 observations. First, he said it was striking for a civil lawyer to see how long it took the common law to recognize a general tort of negligence. He attributed this to the power of laissez-faire. Second, he noted the French and German civil codes have been far more generous. Third, he celebrated the adaptability of French law until World War II. Since that time, however, he noted tort lost its place to insurance schemes. Europeans trust regulation and insurance far more than Americans.
Finally, Anita Bernstein focused on the changes in society, and thus law, from the time of MacPherson until today. In a presentation entitled the "Reciprocal of MacPherson," Bernstein noted the holding of MacPherson was that care and vigilance were owed by an auto manufacturer. Although privity offered "comfort and care" to the manufacturer, the holding in MacPherson, coming during the Progressive Era, offered "comfort and care" to consumers. Modern law, however, is producing a shift toward obligations owed to an auto manufacturer. Bernstein referenced Geier (2000) (preemption limits design defect cases); Kumho Tire (1999) (making expert testimony for plaintiffs more costly and harder to find); and BMW v. Gore (1996) (restricting punies against auto manufacturers). She then noted the bailout of the big 3 auto manufacturers, which cost taxpayers roughly $9.26 billion. Moreover, tort reform, Bernstein suggested, extends the reciprocal. The emphasis has shifted from what is owed to consumers to what consumers owe potential defendants.
Papers from the panel will be published in the Journal of Tort Law.
The meeting concluded with the election of the Executive Committee for the year:
Chair: Leslie Kendrick; Chair-elect: Chris Robinette; Secretary: Stacey Tovino; Treasurer: Adam Scales; Member: Scott Hershovitz