Judges as Tort Law Un-makers: Recent California Experience with "New" Torts

Part of the DePaul Law School's 1999 Clifford Symposium, this article explores the role of "judges as lawmakers" by examining the tort law decisions of the California Supreme Court for the past 15 years -- the final three years that Chief Justice Rose Bird sat on the court and the twelve years after she was removed from office. The article presents the sea change in tort law thinking, doctrine and results that have taken place over this period of time -- essentially through the abandonment of notions of enterprise liability (Calabresi thinking about cheaper cost avoiders and cheaper loss spreaders). One theme of the article is that whereas the Bird court made new law (in some cases creating what might be termed "new" torts), the new court has "unmade" that law by its change of direction and outright overruling of existing doctrine. A counter-theme is that it was the Bird court that "unmade" tort law (by moving the law from clearer doctrine that was to be decided by judges to vague legal standards to be decided by juries), and it is actually the new court that is "making" tort law (by adopting new rules, or re-introducing old rules, that take decisions away from juries and give them to judges)