Judges as Tort Law Un-Makers: Recent California Experience with 'New' Torts

Abstract

A straightforward reading of the title captures my central point: in the past dozen years the California Supreme Court has repealed many provisions of tort law that had been adopted by the court in earlier years. The fundamental reason for this turnabout is a change in court personnel with liberal Democrats, led by Chief Justice Rose Bird, generally replaced with moderate or conservative Republicans. I do not dwell on this readily understandable political explanation for the change in the law. My goals are first, simply to document the extent of the retreat from the court's previously pro-plaintiff inclination. Those who have not been following the court may no longer recognize the California Supreme Court they thought they once knew. 1 Second, in the process of describing this u-turn, I emphasize the extent to which the new court has rejected some basic outlooks held by the old court on what tort law of the late twentieth-century was supposed to be about. 2 Finally, I demonstrate an ironic sense in which the new court is creating some "new" torts. 3 The old court tended to eliminate law, in the * Agnes Roddy Robb Professor of Law, University of California, Berkeley (Boalt Hall). I thank Gary Schwartz and Bob Rabin who provided helpful comments, and Rebecca Krause who provided helpful research assistance. 1. For a somewhat different appraisal of the work of the new court in the post-Bird era, see

How Much Do Conservative Tort Tales Matter?

“…But in the preceding twenty years, the tort law system changed so rapidly that one might wonder whether it had leapt beyond public attitudes about what was appropriate and desirable. Beginning in the 1950s but especially in the 1960s and 1970s, reform-minded state court judges and some state legislatures: (1) sharply modified the common law rule that tort claimants are barred from recovery by their own contributory negligence; (2) limited “assumption of the risk” defenses; (3) reduced governmental and charitable institutions’ legal immunity from tort liability; (4) changed evidentiary rules to facilitate medical malpractice claims; (5) imposed “strict liability” for product defects; (6) expanded property-owners’ liability to those injured in their facilities; (7) expanded the right to recover compensation for accident-related emotional distress and loss of consortium; (8) made it easier to sue out-of-state businesses in the injured party's county courthouse; (9) empowered entrepreneurial lawyers to aggregate the claims of large numbers of accident or defective-product victims into massive class action suits; and (10) adopted the lawyer-driven pretrial discovery rules embodied in the Federal Rules of Civil Procedure, which strengthened plaintiffs’ lawyers’ ability to gather evidence concerning the defendant's liability (Ursin 1981, 243–44; Sugarman 1999, 456–70; Coffee 1995, 1356–58; Priest 1985, 461). All these changes made it significantly easier for plaintiffs to win tort suits and obtain larger damage awards.…”

“…In the wake of a 1986 ballot measure, which resulted in the ouster of California Supreme Court Justice Rose Bird and two other liberals (Wold and Culver 1987), the Court issued a number of rulings restricting tort liability. As Stephen Sugarman (1999, 472) summed it up:…”