The Myths of MacPherson
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John C. P. Goldberg
Abstract
For a symposium marking the centenary of MacPherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, although they have been largely fostered by progressives, the myths lend support to the cause of modern tort reform. By contrast, an accurate appreciation of MacPherson’s virtues permits an understanding of negligence, tort law, and common law adjudication that provides grounds for resisting regressive reforms.
Acknowledgments
We are delighted to revisit MacPherson v. Buick on the occasion of its centenary. Some arguments made herein are elaborations of those made in our first co-authored article. John C. P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733 (1998). Thanks to Professor Anthony Sebok and the AALS Torts Section’s Executive Committee for inviting us to participate on this panel, and to our fellow panelists. Thanks also to Andrew Gold and John Witt for helpful comments. Our research is generously supported by Fordham University School of Law and Harvard Law School.
©2016 by De Gruyter
Articles in the same Issue
- Frontmatter
- Articles
- Editor’s Introduction to the Symposium “MacPherson at 100: Reflections On Its Influence”
- The Reciprocal of MacPherson v. Buick Motor Company
- Ives and MacPherson: Judicial Process in the Regulatory State
- Is MacPherson A Legacy of Civilian Views?
- The Myths of MacPherson
Articles in the same Issue
- Frontmatter
- Articles
- Editor’s Introduction to the Symposium “MacPherson at 100: Reflections On Its Influence”
- The Reciprocal of MacPherson v. Buick Motor Company
- Ives and MacPherson: Judicial Process in the Regulatory State
- Is MacPherson A Legacy of Civilian Views?
- The Myths of MacPherson
