Past as Prelude: The Legacy of Five Landmarks of Twentieth Century Injury Law for the Future of Torts

Abstract

This essay offers some thoughts on prospective developments in injury reparation through the prism of what are, in my view, the principal landmarks of twentieth century American tort and compensation law. I discuss, in roughly chronological order, the four developments that seem to me most critical in restructuring the very foundations of tort law in the twentieth century: First, Judge Benjamin Cardozo's opinion in the landmark case of MacPherson v. Buick Motor Co.; second, the Progressive era adoption of workmen's compensation legislation; third, the concurring opinion of Justice Roger Traynor in Escola v. Coca Cola Bottling Co.; and fourth, the primarily legislative movement from contributory to comparative fault. I then discuss a fifth landmark, United States v. Carroll Towing Co., which attained its landmark status by serving as a catalyst for intellectual ferment, rather than through its direct impact on the tort system. In this last instance, I depart from chronological presentation because the noteworthiness of Carroll Towing came not in its immediate aftermath, but some twenty-five years later when Judge Learned Hand's opinion came to be recognized as a cornerstone of the law and economics movement. My focal point will be the themes that emerge from each of these developments, for it is the rich thematic influence in every instance that forced reexamination of the basic goals, as well as the appropriate domain, of tort law. Similarly, that rich thematic material creates continuing resonance for my corresponding discussion of future developments in the torts area.