ABSTRACT Title of Dissertation: THE TORT REVOLUTION: PRODUCT LIABILITY AND THE RULE OF COURTS Ian J. Drake, Doctor of Philosophy, 2010 Dissertation directed by: Professor Herman J. Belz, Department of History This dissertation is a history of the changes in tort law, specifically in products liability law, from the fault-based negligence standard to the no-fault strict liability standard. It covers a period from the late nineteenth century through the end of the twentieth century. The historical questions this dissertation seeks to answer are i) what caused the change from negligence to strict liability, ii) who were the historical actors responsible for this change, iii) what was the political character of this change, and iv) what were the political consequences of this change. This dissertation reveals that the revolutionary expansion in product liability law in the states in the 1960s was the product of the Progressive ideologies of state court judges. During the Progressive Era, American legal education responded and adapted to the political climate of the wider society by adopting a new philosophical disposition regarding how the courts should address civil wrongs. The political and ideological responses to the industrialization of the late nineteenth century and early twentieth century resulted in legal academics and practitioners advocating new ideologically oriented theories about how law does and should affect citizens. These theories, known as sociological jurisprudence and legal realism, became popular in American law schools. The law students of the 1920s became the judges and legal academics of the 1950s and 1960s. In the latter decades, Progressive state court judges instituted dramatic, revolutionary changes in the area of law known as torts, particularly products liability law. Products liability law was changed from a fault-based system to an insurance or no- fault system. These politically motivated changes in the courts had the unintended consequence of making a theretofore non-political issue into an inherently political issue, subjecting tort law to the pluralism of the American political system at the state and federal levels. Accordingly, this dissertation contributes to our understanding of the process of legal change, and explores the methods by which social and political changes filter into court decisions. The Tort Revolution: Product Liability and the Rule of Courts by Ian J. Drake Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2010 Advisory Committee: Professor Herman J. Belz, Chair Professor James A. Henretta Professor Wayne V. McIntosh Professor Whitman H. Ridgway Professor Michael Ross Copyright by Ian J. Drake 2010 To Linda, Owen, and my mother, Nancy Drake ii ACKNOWLEDGEMENTS My career change from a lawyer to an academic and this dissertation would not have been possible without the patience and constant support of my wife, Linda, and the always-welcomed diversions of my son, Owen. Also, my mother, Nancy Drake, has been an unfailing and unflappable supporter and advisor. This dissertation was immeasurably improved by the comments of, and discussions I had with, the members of my dissertation committee. I would like to thank Herman Belz, James Henretta, Whitman Ridgway, Michael Ross, and Wayne McIntosh for their critiques, assistance, and support. iii TABLE OF CONTENTS List of Tables……………………………………………………………………………viii List of Abbreviations……………………………………………………………………viii Chapter 1: Introduction – A Short History of Tort Law through the Early Twentieth Century …………………………………………………………………1 The Origins and Character of American Tort Law………………………………...7 The Manner of Legal Change in the Twentieth Century………………………….22 Chapter 2: The Progressive Intellectual Foundations of the Changes in Product Liability Law and the Reformers in the Academy…………………………...29 The Early History of Products Liability Law…………………………………….29 Legal Progressivism……………………………………………………………...36 Sociological Jurisprudence and Legal Realism………………………………….39 Early Progressive Tort Reform…………………………………………………..49 The American Law Institute……………………………………………………...65 Progressivism and Legal Education …………………………………………….86 The Lawyers’ Perspectives………………………………………………………90 William L. Prosser……………………………………………………………….99 Chapter 3: The Tort Revolution Begins………………………………………………...111 American Courts as Policy-Making Institutions………………………………..113 Roger Traynor – The Revolutionary in the West……………………………….129 Traynor’s Jurisprudence………………………………………………………..153 Precursors of the Tort Revolution………………………………………………163 The Tort Revolution Begins in the East: Henningsen v. Bloomfield Motors, Inc. (1960)…………………………………………….172 The American Law Institute and the Restatement (Second) of Torts…………...182 The Tort Revolution Advances in the West: Greenman v. Yuba Power Products (1963)………………………………………………188 Chapter 4: The Tort Revolution Spreads……………………………………………….208 How Other States Responded to Henningsen and Greenman…………………..208 a) Alabama…………………………………………………………….213 b) North Carolina……………………………………………………...219 Why Did Other States’ Courts Follow New Jersey and California?...................234 (1) Channels of Communication………………………………………..238 (2) The Frequency of Litigation………………………………………...241 (3) The Specialization of the Tort Bar………………………………….248 iv (4) Unique Ideology: Progressivism and the Legitimacy of Courts as Policymakers……………………………………...252 Greenman as a Catalyst for the American Law Institute……………………….256 A Note on the Consumer Protection Movement and Mass Tort Actions……………………………………………………………..260 Who Reigns Supreme? The Conflict Between Courts and Legislatures Over Tort Law…………………………………………….266 Chapter 5: The First Federal Efforts at “Tort Reform”…………………………………275 Capital Goods Manufacturers – The Interests That Spurred Federal Action………………………………………………………….277 The First Federal Steps in “Tort Reform”……………………………………..284 Chapter 6: The Limits of Reform……………………………………………………….349 A Modest Effort at Reform……………………………………………………...357 Federalism Concerns…………………………………………………………...373 The First Federal Tort Reform Law……………………………………………377 Tort Reform Proposals Proceed………………………………………………..397 Epilogue………………………………………………………………………………...408 Bibliography……………………………………………………………………………425 v LIST OF TABLES TABLE 1: Federal Product Liability Cases…………………………………………….246 vi LIST OF ABBREVIATIONS ABA: American Bar Association ALI: American Law Institute ATLA: Association of Trial Lawyers of America CAB: Civilian Aeronautics Board COA: Court of Appeals (federal) CPSC: Consumer Products Safety Commission FDA: Food and Drug Administration FTC: Federal Trade Commission GAO: General Accounting Office GE: General Electric GM: General Motors ICC: Interstate Commerce Commission ISO: Insurance Services Office MAAC: Multi-Association Action Committee MAP: Marketing assistance program MAPI: Machinery Allied Products Institute NAACP: National Association for the Advancement of Colored People NAW: National Association of Wholesaler-Distributors NFIB: National Federation of Independent Business UCC: Uniform Commercial Code UPLA: Uniform Model Products Liability Act USAOC: Administrative Office of the United States Courts vii Chapter 1: Introduction – A Short History of Tort Law through the Early Twentieth Century On a Tuesday morning in August 1888, a Mr. Heizer was assisting Ira Ellis, a farmer on the rural prairie lands of Audrain County, Missouri, in the use of a new threshing machine. The machine had worked without incident the previous Saturday and Monday, but on Tuesday morning, when Heizer began feeding grain into it, the cylinder disintegrated and a part struck Heizer in the head. He later died of his injury. The thresher had been made by the Kingsland & Douglass Manufacturing Company, a Missouri corporation, and sold to the farmer, Mr. Ellis. Mr. Heizer‟s widow, representing her husband‟s estate, brought suit against the manufacturer. The Missouri Supreme Court, pursuant to the prevailing common law rules of the time, held that the manufacturer was not liable to Heizer‟s estate because there was no contractual relationship between Kingsland & Douglass and Mr. Heizer. The manufacturer could only be liable to a third party (someone not a party to the contract between it and farmer Ellis) if the thresher were considered “necessarily and inherently dangerous to human life.” The court distinguished the thresher from the special case of a poisonous drug, which would have carried liability regardless of a contractual relationship between the maker and user. The thresher, said the court, “speaks for itself … [and was analogous to] a handsaw or the many other implements and machines in daily use.” The thresher was simply “entirely different” from a poisonous drug.1 1 Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605; 19 S.W. 630 (1892). 1 This outcome was predictable in 1892. Under the law of all states in the United States, the maker of a defective good was liable only to those with whom he had a contract of sale.2 A century later, in 1992, the outcome probably would have been very different.3 At the end of the twentieth century the existence of a contract would have been irrelevant to the machine maker‟s liability. In all likelihood, the machine‟s manufacturer would never have been sued because its liability insurance company would have negotiated a settlement with the estate. A pre-suit settlement would have been advisable because the law at the end of