Ives and MacPherson: Judicial Process in the Regulatory State

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AbstractA century ago, the New York Court of Appeals decided a case whose implications have reverberated through American law ever since. The case, like so many, arose out of one of the most notorious body-smashing technologies of the modern world. And it was a case whose opinion was authored by an up-and-coming jurist rumored to be a likely future nominee to the United States Supreme Court. Naturally, that opinion has appeared in torts casebooks ever since. The case, of course, was not MacPherson v. Buick, the occasion for this symposium, but rather Ives v. South Buffalo Railway, in which the New York Court of Appeals struck down what was essentially the nation’s first workmen’s compensation statute. It does not appear in that many casebooks. But it does in some. In an opinion written by Judge William Werner, the court tried to throw itself in front of the coming regulatory state. It failed, of course, at least in the most obvious sense. The regulatory state plays a vast role in the contemporary state, and has for more than three quarters of a century at least. But the Ives case’s engagement with the compensation scheme anticipated the central theme in American tort law in the century since: the relationship between tort adjudication and the common law, on one hand, and the forms of administration, on the other.