Volume 71, Issue 4, 1101-1052
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.
I have previously written about this subject in How Great Judges Think: Judges Richard Posner, Henry Friendly, and Roger Traynor on Judicial Lawmaking.The present Article sharpens the diffuse sketch in that piece by focusing solely on Traynor and on the two articles he considered his most important. The first, the 1956 Law and Social Change in a Democratic Society, appeared two years after the Supreme Court’s 1954 decision in Brown v. Board of Educationand defended judicial lawmaking against legal formalists who denied that judges are lawmakers. The second, the 1961 No Magic Words Can Do It Justice, directly targeted iconic 1959 articles by legal process scholars Henry Hart and Herbert Wechsler. The Hart and Wechsler articles had criticized the lawmaking of the Warren Court, including the Court’s landmark decision in Brown v. Board of Education, for its failure to conform to their demand for neutral principles. In response, Traynor wrote, “What did Professor Wechsler have in mind beyond “magic words,” comparing Wechsler to “desperate . . . students at examination time who search for “magic words” among mounting stacks . . . .”
In his 2016 book, Divergent Paths, Judge Posner writes that my Buffalo piece presents an “accurate genealogy of legal realism” and legal pragmatism from the mid-nineteenth century to the present day. The present Article presents, for the first time, a genealogy of the common law aspect of legal process jurisprudence throughout the twentieth century, from Roscoe Pound, through Justice Louis Brandeis, James Landis, and (later Justice) Felix Frankfurter, to Hart and Wechsler. Legal process scholarship is seen today to have been a public law jurisprudence, concerned with subjects such as the procedures for lawmaking by administrative agencies. My genealogy explains, however, that it was also a common law jurisprudence. And it was this jurisprudence that stood as an obstacle to courts adopting the enterprise liability agenda.
The Article closes by demonstrating the successes of legal pragmatism in the courts both through the example of judicial adoption of the comparative rule and by an analysis of the torts decisions of both the liberal (1960–1986) and conservative (1986–2018) iterations of the California Supreme Court—and offers in a Postscript, a preview of the jurisprudence of the post-2019 seven member court that now consists of four justices appointed by Democratic Governor Jerry Brown.