Justice Roger J. Traynor, Pragmatism, and the Current California Supreme Court

Abstract

California Supreme Court Justice Roger J Traynor entered the debated between pragmatists and formalists, siding with the former in both his scholarly writings and in his judicial opinions,especially in torts. In this article, I explore what I have identified as the leading torts decisions of the California Supreme Court involving personal injury or death in the past twenty years. I first provide background on the rise of strict product liability and an explanation of what I see as the current California Supreme Court’s misguided reliance on the "Rowland" factors, which promote the treatment of “no breach” cases as “no duty” cases. In Part II, I demonstrate the prominence of pragmatism in the Court’s recent decision-making, but not the sort of pragmatic thinking that Traynor expressed. In Part III, I speculate as to how Traynor might have wanted these recent cases resolved based on his pragmatic endorsement of enterprise liability.

Keywords: torts, strict liability, pragmatism, enterprise liability, Traynor

JEL Classification: K13