Criticism
The liberal tendencies of much of Traynor's work has since made him the subject of extensive criticism from American libertarians and conservatives, and tort reformers have often grouped Traynor together with Earl Warren as examples of judicial activists. For example, the conservative magazine National Review attacked Traynor's reasoning in the Pacific Gas and Electric case (Pacific Gas & Elec. Co. v. G. W. Thomas Drayage Co., 69 Cal. 2d 33 ) in a 1991 cover story.
In 1998, Regulation (the Cato Institute's journal) published a harsh critique of the California tort law system by Stephen Hayward. He claimed that "rather than protecting life, liberty, and property, has ... become a threat to these." In blunt language, Hayward identified Roger Traynor's liberalizing influence on the Court's view of liability as "the first breach":
| “ | In the 1944 case of Escola v. Coca Cola Bottling Co. ... Traynor introduced the idea of broad social fault. "I believe," Traynor wrote, "the manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to recover in cases like the present one." .... "Even if there is no negligence," Traynor wrote further, "public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market." Note the appeal to the demands of public policy, rather than law .... While this line of reasoning might be the basis for a legislative debate over which public policies should be adopted to allocate and compensate for risk, Justice Traynor's opinion represents a clear case of legislation by judicial fiat. | ” |
In a 1966 essay addressed to both the legal community of his time and future generations, Traynor defended his judicial philosophy:
| “ | There are always some who note with alarm any appellate opinion that goes beyond a mechanical canvass of more or less established precedents. They include the diehards, dead set against all but familiar routines. They include the slothful, who would rationalize their own inertia. They also include carpers hostile toward any enlightenment, who would knowingly impair judicial vigil by keeping the visibility low. Slyly they equate justice with the blindfold image without articulating the corollary that decision would then be reduced to a blind toss of the coin. They do not state how problematic are the problems that reach the Supreme Court, and how great the need for judicial reasoning beyond formulas. | ” |
Read more about this topic: Roger J. Traynor
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