The theory of enterprise liability is associated with the tort lawmaking of the liberal California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This Article explains that early incarnations of each can be found in the works of four giants in American law: Justice Oliver Wendell Holmes, Judge—later Justice—Benjamin Cardozo, and the Legal Realists Leon Green and Karl Llewellyn. As will be seen, these scholars and judges shared a common view of the lawmaking role of courts. Stated simply, this shared view was that judges are lawmakers and policy does—and should—shape their lawmaking. If this formulation sounds familiar, it is because of its similarity to Judge Richard Posner’s legal pragmatism, which Posner himself has linked to Holmes and Cardozo. Posner’s legal pragmatist believes that at times “judges in our system are legislators as well as adjudicators” and that policy judgments are at the core of their lawmaking. A particular focus of this Article will be judicial lawmaking in the common law and, more specifically, tort law. This focus reveals that we can see in the works of these great judges and scholars the origins of the enterprise liability doctrines adopted by courts in recent decades, in particular, the doctrine of strict products liability and the policy-based expansion of liability within the negligence system.
Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol50/iss3/3