Edmund Ursin, ‘Roger Traynor, the Legal Process School, and Enterprise Liability’

Roger Traynor, who served on the California Supreme Court from 1940 to 1970, the last five years as Chief Justice, was one of America’s great judges. This Article compares Traynor’s view of the lawmaking role of courts with the dominant jurisprudential perspective of mainstream legal scholars at time, that of the legal process school.

Today it is widely believed that Traynor was a ‘firm advocate of the legal process’ approach to judicial lawmaking. The thesis of this Article, however, is that Traynor was a legal realist whose jurisprudence of what Judge Richard Posner has termed legal pragmatism was at odds with the legal process approach. In particular, Traynor’s 1960s rewriting of tort law to expand avenues for victim compensation, hailed as a ‘renaissance in the common law’ by the editors of the Harvard Law Review, had been opposed by the legal process scholars who insisted that judges base their decisions on ‘neutral principles’. To Traynor, however, ‘neutral principles’ were nothing more than meaningless ‘magic words’ and an impediment to needed reform of the common law and, in particular, judicial adoption of what is now known as the theory of enterprise liability …

Ursin, Edmund, Roger Traynor, the Legal Process School, and Enterprise Liability (2020). Hastings Law Journal, volume 71, no 4, 2020.

First posted 2021-07-24 17:00:09

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