The Myths of Macpherson

26 Pages Posted: 27 Apr 2016 Last revised: 23 Jun 2016

See all articles by John C. P. Goldberg

John C. P. Goldberg

Harvard Law School

Benjamin C. Zipursky

Fordham University School of Law

Date Written: April 26, 2016

Abstract

For a symposium marking the centenary of Macpherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, although they have been largely fostered by progressives, the myths lend support to the cause of modern tort reform. By contrast, an accurate appreciation of MacPherson’s virtues permits an understanding of negligence, tort law, and common law adjudication that provides grounds for resisting regressive reforms.

Keywords: Adjudication, Cardozo, Common Law, Duty, Escola, Instrumentalism, MacPherson v. Buick, Negligence, Pragmatism, Preemption, Privity, Traynor

Suggested Citation

Goldberg, John C. P. and Zipursky, Benjamin C., The Myths of Macpherson (April 26, 2016). 9 Journal of Tort Law (2016, Forthcoming), Fordham Law Legal Studies Research Paper No. 2770725, Harvard Public Law Working Paper No. 16-32, Available at SSRN: https://ssrn.com/abstract=2770725 or http://dx.doi.org/10.2139/ssrn.2770725

John C. P. Goldberg (Contact Author)

Harvard Law School ( email )

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Benjamin C. Zipursky

Fordham University School of Law ( email )

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New York, NY 10023
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