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

48 Pages Posted: 18 Dec 2019

See all articles by Stephen D. Sugarman

Stephen D. Sugarman

University of California, Berkeley - School of Law

Date Written: November 13, 2019

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

Suggested Citation

Sugarman, Stephen D., Justice Roger J. Traynor, Pragmatism, and the Current California Supreme Court (November 13, 2019). Hastings Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3497113

Stephen D. Sugarman (Contact Author)

University of California, Berkeley - School of Law ( email )

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Berkeley, CA 94720-7200
United States
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HOME PAGE: http://www.law.berkeley.edu/faculty/sugarmans

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