Summary
Interpretations of the New York Appeals Court 1905 decision in Macpherson v. Buick Motor Co. provides a foundation for an argument in favor of a non-instrumental approach to tort law, instead of a utilitarian, rules-based approach. MacPherson embraced duty of care as it applied to a manufacturer. Duty of care is a moral concept that is exhibited throughout tort law. Such concepts emphasize legal rights are based on moral obligations and not on the threat of legal punishment.
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Extract
The moral of MacPherson.
"[A]lthough `we are under a Constitution, the Constitution is what the judges say it is.'"(1)
"There is a duty [of care] if the court says there is a duty; the law [of negligence], like the Constitution, is what we make it."(2) INTRODUCTION In Lochner's Legacy, Cass Sunstein noted that scholars have tended to build their positive and normative theories of constitutional law around a few judicial decisions that are taken to reflect fundamental and progressive transformations of the field.(3) In particular, he argued that much of modern constitutional theory might be described as an attempt to identify the moral in the story of how West Coast Hotel v. Parrish(4) rid constitutional law of Lochner v. New York(5) and the doctrine of economic substantive due process.(6) Modern tort theories, particularly modern theories of negligence, have likewise been built around narratives of progress that attribute special significance to certain transformative cases. One of the most important moments in these narratives is the tale of the "assault upon the citadel of privity."(7) In this story, the part of Lochner is played by Winterbottom v. Wright,(8) the decision that gave birth to the restrictive liability rule that a manufacturer cannot be held liable for injuries caused by its negligently-made products absent privity between it and the plaintiff. The part of West Coast Hotel, in turn, is played by MacPherson v. Buick Motor Co.,(9) in which then-Judge Cardozo, "wielding a mighty axe, burst over the ramparts, and buried the general [privity] rule under the exception."(10) The parallel between constitutional and tort scholarship is more striking than this, however. It is not just that tort scholars, like constitutional scholars, have constructed theories of negligence around interpretations of transformative cases. Rather, many of our most prominent tort scholars have in fact drawn the same moral from their analysis of MacPherson that the first generation of post-Lochner scholars drew from cases like West Coast Hotel. Indeed, according to the still-predominant scholarly view, MacPherson's overruling of Winterbottom represents the exposure and rejection of the same jurisprudential mistakes that many constitutional scholars writing in the period 1890-1960 attributed to Lochner. According to the latter group---represented by judges and scholars including, for example, Learned Hand and Edwin Corwin--the critical premise of Lochner and other substantive due process decisions consisted of a claim by the courts that regulatory legislation posed a set of justiciable questions that could be resolved by applying a concept of constitutional rights.(11) Thus, the courts relied on an ostensibly legal and moral concept--the right to economic liberty--to explain why the Constitution entitled, and indeed obligated the judiciary, to block legislative efforts to protect workers from the perceived risks and costs of industrialization, including economic exploitation. This reliance was Lochner's mistake. Legal scholars--Holmes, in particular--had shown that when judges talked of rights, they did not actually invoke a distinctive kind of concept, but instead were disguising, through rhetoric, their own legislative or policy decisions about which rules would promote the public good.(12) West Coast Hotel. on this view, marked the judiciary's belated concession that its prior interference with economic legislation could not be justified by a claim that it possessed a special competence to enforce rights, but instead amounted to the imposition of its own outdated policy views on a populace that did not share them.(13) The story tort scholars have told, and continue to tell, about the transition from Winterbottom to MacPherson bears a remarkable resemblance to the story just told about Lochner and West Coast Hotel. According to these scholars--who range from Leon Green and William Prosser to Richard Posner and Robert Rabin--the Winterbottom court, like the Lochner Court, claimed that the doctrine of privity was entailed by an autonomous and judicially-identifiable legal and moral concept--in this case, the concept of duty.(14) Thus, just as the Lochner Court held that the notion of rights contained in the doctrine of substantive due process constrained its decision, the Winterbottom court concluded that the concept of duty contained in negligence doctrine obliged it to rule that manufacturers could not be held liable for many of the injuries that they caused.(15) Similarly, these tort scholars maintain that the mistake of Winterbottom was exactly the mistake of Lochner. "Duty," no less than "right," is nothing more than a conclusory label for judicial assessments of prudent policy.(16) Finally, just as West Coast Hotel marked the judicial renunciation of rights, MacPherson marked the judicial renunciation of duty. Thus, according to most mainstream tort scholars, the moral of MacPherson is that the contours of negligence typica...See the full content of this document
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