A campaign to bring tort law under federal control centers on
the idea that our courts have taken public policy into their own
hands, "destroying centuries-old standards."
Among the opinions cited as evidence of judicial over-reaching
is a 1944 concurring opinion in the California Supreme Court
enunciating the theory that "even if there is no negligence, 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."
Regardless of the merits of strict liability of manufacturers
for products that cause injury, the objection that the courts have
no basis making policy in this area simply ignores legal history.
Our entire law of personal negligence is essentially court made;
and, until courts in the 19th century changed the rule, strict
liability was the rule, not the exception.
For most of English legal history, if I caused injury to
another person, I was liable even if I had not acted negligently.
One commentator surveying the old cases notes that "apparently in
no reported common law action . . . did the defendant actually
prevail upon a showing that the injury, though caused directly by
his voluntary act, did not result from any negligence on his part."
Not until the 19th century did the courts - undoubtedly
reflecting society's view that in the Industrial Revolution we want
to encourage people to act in new and perhaps dangerous ways -
change public policy and develop lack of negligence as a defense in
personal injury cases. An oft-cited example was the 1850 decision
of the highest court of Massachusetts in Brown vs. Kendall. (The
opinion was written by Lemuel Shaw, an eminent jurist and Herman
In Brown, the defendant was attempting to separate two dogs
with a stick. In doing so, he raised the stick above his head to
strike the dogs, accidentally hitting the plaintiff in the eye. All
parties agreed that the defendant had not acted negligently or
carelessly. The court, in a much-cited decision that helped
revolutionize the law of personal injury, held that the defendant
could avoid liability by showing that he had not been negligent.
This was something new. The English courts had ruled to the
contrary as early as 1466 in a case involving essentially the same
So strict liability is not only nothing new, but was the law
for most of our legal history until the courts wcreated the
19th-century defense of no negligence in personal injury matters.
Those who do not like the outcome of recent decisions should not
blame the judicial process.
Examples of strict liability are legion. The common law
doctrine that makes employers responsible for negligent acts of
their employees, even where the employer himself is totally free
from negligence, is a well-known example. Workers' compensation
laws, which impose liability on employers for on-the-job injuries
to employees whether or not caused by the employer's negligence,
are another familiar example.
The objection that the courts have no business making policy in
this area is also off base. The law of torts (the branch of law
that deals with the right of redress for personal injuries) was
developed almost entirely by the courts, and it was transformed
over many centuries by a gradual accretion of court-made law. …