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This collection of
Chief Justice Roger Traynor's essays makes two attractive offers to the reader: an
exposure to one of the distinguished judges in twentieth-century American history and an
opportunity to reflect about the nature and process of appellate judging. Others, as well
as myself, have regularly remarked on Traynor's contributions to American law and
jurisprudence;1 it seems pointless to detail
those observations in a book whose purpose is to allow Traynor to speak for himself. There
are, however, several features of Traynor's approach to judging that one can see revealed
in the essays, a few of which are worth comment.
The years of Traynor's tenure on the Supreme Court of California, 1940
to 1970, were years of unprecedented growth and change in the state and the nation. In
addition, they were years in which the idea of affirmative government, embodied in
political slogans such as the New Deal, the Fair Deal, the New Frontier, and the Great
Society, increasingly dominated American life. The thirty years of Traynor's service not
only witnessed massive changes in demographics and technology, but witnessed growing
momentum for the proposition that government whether at the state or national levels,
whether through its executive, legislative, or judicial branches-should be a principal
agent of response to the changes. When Traynor first assumed the office of judge in 1940,
the idea of affirmative government was well launched; by 1970, when he retired from the
Supreme Court of California, it had crested. His entire judicial career was spent in an
intellectual environment that assumed that the increased presence of government in
American life was a necessary and beneficial phenomenon. One can find this assumption
explicitly stated on several occasions in his writings.
The social and intellectual context of Traynor's tenure ensured that
the principal jurisprudential challenge faced by Traynor and his peers would be the
challenge of activism. The term "activism," when associated with judging, has
recently acquired a pejorative flavor, suggesting hubristic or megalomaniacal judicial
behavior. The term had no such meaning during the years of Traynor's tenure. Activism for
Traynor merely meant a sense that, for a variety of reasons, judicial performance of a
given task, as opposed to the performance of that task by a jury or a legislative or an
administrative body, furthered the values of rationality, competence, or
disinterestedness. It also meant a desire to have some unit of government make an
affirmative response to social problems. A major question for Traynor was how, in a
world where government was expected to respond to, and to help shape, the course of rapid
social and economic change in American society, the judiciary could contribute to that
response. The speeches suggest that three dimensions of the activist challenge were
especially significant for Traynor. One was the problem of the obsolete precedent; a
second was the relationship between courts and legislatures in a world of affirmative
government; a third was the relationship between judicial activism and the conventional
view that judicial decisions should avoid being "result-oriented."
I
In "Law and Social Change in a
Democratic Society," "The Courts: Interweavers in the Reformation of Law,"
and "Some Not So Lost Causes of Action," one can see Traynor wrestling with the
presence of "a wooden or hazy concept in the law that hampered a perennial question
for solutions to intractable questions." He refers to "rule[s] [that have] lost
touch with reality and should be abandoned or reformulated to meet new conditions and new
moral value,"2 and to "the diseased
anachronisms, the toadstool formula, the scrub of pompous phrases."3 "Who among us," he asks, "has not known a
precedent that should never have been born?" Yet the "notion persists that the
overruling of ill-conceived, or moribund, or obsolete precedents somehow menaces the
stability of the law.4
In addressing the problem of the obsolete precedent, Traynor repeatedly
resorts to the metaphor of "clearing brush in a forest." Precedents are likened
to trees: obscure or obsolete ones block out light, bar the path of progress, entangle
travelers in their doctrinal undergrowth. On the other hand, sound precedents grow,
provide guidance to the traveler, and nurture the soil. The judge's task is to prune
carefully, removing the "diseased" wood and underbrush without cutting all the
trees down. The metaphor is in some respects an obvious one, but it suits Traynor's
purpose: brush clearing is a purposeful, rational activity that advances
"progress" without doing violence to established structures. Such a description
approximates Traynor's ideal of appellate judging. When a judge encounters a precedent
that seems irrational, given the conditions or the assumptions of contemporary society,
Traynor advises considering "pruning it" (limiting the obsolete or unjust
features of its application) or, if necessary, chopping it down (overruling it) to make
way for a "healthier" approach.
How does one know when a precedent has reached the stage of
obsolescence? Here Traynor draws on his career in two related worlds, the world of the
legal scholar and the world of the judge. From 1930 to 1940 and from 1970 to his death
Traynor was a law professor; his judicial opinions are notable for their reliance on
academic sources.5 Academics, Traynor feels,
"have the freedom as well as the nurturing intellectual environment to differentiate
the good growth from rubbish."6 A major
purpose of scholarly commentary is to see the forest despite the trees; to articulate the
policy grounds on which precedents exist and the social principles they purport to embody.
Such an articulation can also reveal the irrelevance or injustice of policies and
principles formulated in another era. Scholarly analysis thus draws a judge's attention to
the basic reasons for obsolescence. It is then the judge's turn to apply the scholarly
insights to his own work.
Judges, rather than scholars, have actual cases to decide. Scholarly
criticism of precedents may be useful, but it has no direct legal significance; a judge,
on the other hand, has the power to change the common law. Once scholars have alerted a
judge to the underlying bases of a precedent, the judge is provided with a vehicle for
subjecting the precedent to searching analysis. Such analysis might suggest that since the
principles or policies behind the precedent are no longer regarded as significant, the
precedent should be abandoned. But the judge's task is not only to subject precedents to
critical analysis but to describe how they should be reformulated or what is to replace
them. Scholarly guidance only takes the judge so far: eventually "a judge's troubled
quest for the rational outcome of a hard case involves . . . professional skill . . .
legal reasoning, and legal imagination."7
In his own career Traynor regularly "pruned" or abandoned
obsolete precedents when he felt their purposes had been served. Two of the three essays
dealing primarily with substantive law, "The Ways and Meanings of Defective Products
and Strict Liability," and "War and Peace in the Conflicts of Laws," survey
developments in areas in which Traynor significantly changed the common law of
California. His landmark defective products opinion, Escola v. Coca Cola
Bottling Company,"8 fused warranty
theory with the idea of strict liability for "abnormally dangerous" substances
to create the principle that a manufacturer of a "defective" product which
injures another is strictly liable for injuries that can be traced to the product's
defectiveness. Escola was less of an "overruling" than an abandonment of
the "privity" qualification for injured consumers, who previously could only
have proceeded in warranty against persons in direct contractual relations with them. But
Escola was to reorient the treatment of defective products cases: by the 1960s, Traynor's
approach had become adopted by numerous jurisdictions and the Restatement of Torts, and
today consumers injured by "defective" products sue manufacturers directly in
tort in most jurisdictions.
Escola was representative of Traynor's approach to
"intractable" legal problems in that his analysis was informed by his awareness
of academic scholarship, in particular William Prosser's analysis of strict liability for
defective products in the 1941 edition of his Torts treatise.9
In the area of conflict of laws as well Traynor's innovations were grounded on a
familiarity with academic literature. As he puts it in "War and Peace":
"When there is no clearing, [the judge] must chop his way through, however clumsily,
and hope that scholars will speed their reinforcements." 10
Traynor's early California conflicts decisions, such as Grant v. McAuliffe11
and Emery v. Emery,12 demonstrated his frustration with the
"mechanical concepts" and the "rigid rules" of the first Restatement
of Conflicts. "I had to find my own bearings in that dismal scene," Traynor
writes, "praying for a minimum of trial and error." Eventually "I came to
rely most heavily on Professor Brainard Currie's interest analysis, with some modification
and amplification."13
Interest analysis, which searches for the policy behind a law of forum
state, reserving choice of law questions for those situations when the forum state cannot
be said to have an interest in applying its policy, was employed by Traynor in two of his
later decisions, Bernkrant v. Fowler14 and Reich v. Purcell.15
Those
decisions embody an approach that is now dominant in California, many other jurisdictions,
and the second Restatement of Conflicts. Notwithstanding Traynor's acknowledged debt to
Brainard Currie, he had himself employed interest analysis in conflicts cases as early as
1942, in his dissenting opinion in Ohio ex rel. Squire v. Porter.16
Curiously, Traynor temporarily
abandoned that approach three years later,17
only to revive it in the 1950s. Writing of his attitude towards conflicts cases in the
1940s, Traynor suggested that "scholars . . . may speculate that time had wearied a
still junior judge. Thereafter, confronting still heavier calendars, I grew younger . . .
."18
II
The obsolete precedent
may thus have given Traynor some concern as a judge, making him more of a pruner than a
lumberjack, but it did not keep him from actively clearing the forest. Nor was the
proliferation of statutory law that occurred during Traynor's tenure a bar to activism;
the presence of statutes only increased the challenge. By the time Traynor took office in
1940, a tradition of judicial deference to statutes had become well established. Visible
judges such as Holmes, Brandeis, Learned Hand, Frankfurter, and Stone had been associated
with a theory of deference to the legislature in constitutional areas, and the theory
seemed even more compelling in common-law cases in which no constitutional issues were
raised.
Traynor was not fully persuaded by this theory of deference, and sought
to expose its limitations. "There has been too much idle disputation," he said
in 1961, "as to whether [the judiciary] or [the legislature] is the primary or
ultimate or most social or most appropriately gowned source of law." He found the
idea that "judicial lawmaking must now atrophy because statutory lawmaking is growing
apace" to be derived by "curious reasoning." He reminded enthusiasts for
statutory lawmaking that "even the most carefully drafted and comprehensive statutes
of one generation decline into the antiquated texts of the next."19 In the main, Traynor continued to regard
"the major responsibility for law making in the basic common law subjects"20 as remaining with the courts.
To adopt this view, in a world in which statutes proliferated, required
some ingenuity. Traynor articulates his theory of the relationship between judicial and
statutory lawmaking in several of the essays, notably "The Unguarded Affairs of the
Semikempt Mistress" and "Statutes Revolving in Common-Law Orbits." The
theory is sufficiently sophisticated to resist easy encapsulation, but its bare outlines
are as follows.21 Both legislative lawmaking
and judicial lawmaking are in a continual state of change, and the relationship between
the two types of lawmaking is symbiotic rather than competitive. Legislatures pass
statutes whose applicability to specific situations is uncertain; courts undertake the
applications; legislatures revise the courts if they find a specific application
offensive. Alternatively, statutes can supply, by analogy, common-law rules. When a case
is not governed by a statute, Traynor notes in "Statutes Revolving in Common-Law
Orbits," a court is "free to copy an appropriate model in a statute."22 In a case raising the question of the
responsibility of guardians for the administration of testamentary gifts, Traynor
analogized to provisions of the California Probate Code establishing procedures for the
administration of testamentary gifts by executors. The Code was silent on guardians;
Traynor created a common-law rule patterned on its treatment of executors.23
Traynor's partnership theory of legislative-judicial relations led him
to reject some traditional maxims of statutory interpretation. He criticized a literal
reading of statutes, urging that courts go beyond the express words to consider
legislative purpose and context. He suggested that legislative silence need not invariably
be taken as acceptable of existing common-law rules; it can also mean "ignorance or
indifference." And he protested against the view that "policy" matters are
peculiarly the provence of the legislature. Policy considerations are as "appropriate
and even . . . basic" to judging as to legislating.24
In short, the presence of statutory lawmaking neither deterred Traynor
from his own innovative efforts nor provoked him to adopt a competitive stance toward
legislation. He recognized the "leeways" left by statutes: The necessity for
broad statutory language to be interpreted in concrete situations; the opportunities for
judicial creativity in the interpretations; the eventual emergence of a "common
law" of statutes. For several of Traynor's contemporaries the presence of a
legislature presented an opportunity to avoid difficult decisions or to resist change; for
Traynor the legislative presence only spurred him to action. He rejected "the
protestations of those who would have us believe that judicial rules and statutory rules .
. . spring from separate covertures"; the "real problem" for him was
"not whether judges should make use of statutes, but how they can make optimum use of
them."25
III
In his efforts to
modify or to abandon obsolete precedents and to make ingenious use of statutory language,
Traynor was guided by an ideal, which he once described as "a legal process as
rational in all its ramifications as it has traditionally been in the courts."26 "La Rude Vita, La Dolce Giustizia,"
"Better Days in Court for a New Day's Problems," and "Statutes Revolving in
Common-Law Orbits" address the theme of rationality in judging, as does Traynor's
substantive essay on criminal procedure, "The Devils of Due Process in Criminal
Detection, Detention and Trial." Traynor's devotion to the ideal of rationality
raises the problem of result-orientation in judging, a problem that devolves from the
elitist status of the judiciary in a democratic society.
Result-orientation, according to one line of criticism, is to be
deplored in judging because there is no effective political check on American judges.
Possessed of life tenure or virtually assured of reelection, invested with dignity and
mystery by their office and their language, making decisions that affect many people but
are understood by relatively few, judges, this line of argument runs, are "free"
to impose their biases on the rest of us without much accountability. Given the powers and
freedoms of judges, judicial result-orientation is deplorable in a democracy. A judge
ought to be "impartial," "disinterested," and objective."
To some extent Traynor accepted this line of criticism, although he
found that disinterestedness and objectivity were not incompatible with
result-orientation. For Traynor rationality was the link between the ideal of the
dispassionate judge and the reality that every judicial decision was
"result-oriented" in that it reached a judgment for one side rather than
another. In most "hard" cases, the kinds of cases that are considered by
appellate courts, "competing considerations are of such closely matched strength as
to create a dilemma." A judge needs to "arrive at a decision one way or the
other"; how can the judge "avoid being arbitrary?" And a decision
"will not be saved from being arbitrary merely because [the judge] is
disinterested."27
Here rationality comes into play. The judge who is "intellectually
interested in a rational outcome" cannot "remain disoriented forever, his mind
suspended between alternative possible solutions." Rather, he "can strive to
deepen his inquiry and his reflection enough to arrive at least at a value judgment as to
what the law ought to be and to spell out why." The value judgment may have been
intuitive, but it needs to be "spelled out." In the course of explication the
judge's "interest in a rational outcome" becomes channeled "into an
interest in a particular result." Result-orientation is thus "no more than the
final step toward reasoned judgment."28
The original motivations of a judge ("biases") are of no consequence if the
judge takes the time and effort to reason his judgments through. The significance of a
result becomes indistinguishable from the reasons given in connection with it. If the
reasons are vulnerable to at tack, so is the result. Rationality thus not only serves to
explicate result orientation, it justifies it. The "primary internal characteristic
of the judicial process," Traynor says in "Statutes Revolving in Common-Law
Orbits," is "that it is a rational one."29
The author of this introduction is tempted to drop the role of an
expositor at this point and to question, as I have on previous occasions, Traynor's faith
in rationality as an "ideal for the legal process" or even as a moving force in
the universe.30 But whether or not one shares
Traynor's sanguinity about the capacity of judges or other humans to behave rationally, he
makes a coherent and plausible case for the significance of rationality in judging. One
cannot, as a judge, simply "write up" one's feelings. If one grounds a decision
on one's basest prejudices or one's wildest enthusiasms, one does a disservice to an
office whose occupants are expected to behave "impartially," however elusive
that standard may be in application. One of the justifications for giving some humans the
power to make decisions affecting the lives of others is that expectation of impartiality.
The expectation serves as a constraint on judicial decision-making, forcing judges to
justify decisions in language whose purpose is to assure others that the decisions are not
idiosyncratic or "biased."
Given this expectation that judges, in exchange for their arbitrary
power, will not act arbitrarily, there is much to be said for rationality as an ideal for
opinion-writing. Opinions are the means by which judges convince the rest of us that they
are not behaving arbitrarily; the more "rational" those opinions seem, the more
they may be likely to meet this burden of persuasion. This, I take it, is the principal
sense in which Traynor uses the term "rational." Philosophically, that usage
begs some questions, since one can begin with an "irrational" premise and then
logically derive results from it, investing one's discourse with the kind of coherence
that one finds in the syllogisms of the Mad Hatter. What is "rational" may be
what we make it to be; rationality may be nothing more than an effort to persuade others
to accept one's inarticulate premises. Still, one can see how a search to persuade others
might well lead a judge to examine his own premises and to try to fashion arguments for
why others should accept them. It does no injustice to the common meaning of rationality
to call this exercise in persuasion a search for "a rational outcome." Traynor
was well aware that the rationality of one generation will probably not be that of
another; that awareness keeps his dedication to "a rational ideal for the legal
process" in proper perspective.
There is much more in this collection than the preceding summary has
gleaned. For reasons previously alluded to, judging is a profession whose practitioners
take care that their personalities and values do not intrude too heavily on their work
product. It is rare when one gets a glimpse of the theory of judging that lies behind a
judge's efforts; rarer still when a judge has a theory that is sufficiently integrated to
set forth in print. With this collection of writings, Traynor follows a tradition of
articulate twentieth century judges, personified by Cardozo in The Nature of the
Judicial Process, who have talked about their theoretical approach to their job. One
might wish that more judges would attempt such efforts, but few, one suspects, would meet
the standards set by Roger Traynor in this volume.
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