Volume 9, Issue 1-2 -

MacPherson v. Buick Motor Company won fame for taking down a privity barrier that stood between consumers and manufacturers of products that cause injury. Privity had offered liability-shelter to remote vendors; MacPherson destroyed that shelter when it held that nonprivy vendees have an entitlement to care and vigilance. In this relation of mutually constituted security and danger, privity and MacPherson are each the other’s reciprocal. This article, written to celebrate the centenary of a great decision, explores the reciprocity path that MacPherson helped to build by considering instances of law-mandated care and vigilance that came after it. Broadly worded obligations as provisioned in MacPherson function to support, or at least are consistent with, entitlements and shelters that business entities now receive from American consumers.

A century ago, the New York Court of Appeals decided a case whose implications have reverberated through American law ever since. The case, like so many, arose out of one of the most notorious body-smashing technologies of the modern world. And it was a case whose opinion was authored by an up-and-coming jurist rumored to be a likely future nominee to the United States Supreme Court. Naturally, that opinion has appeared in torts casebooks ever since. The case, of course, was not MacPherson v. Buick, the occasion for this symposium, but rather Ives v. South Buffalo Railway, in which the New York Court of Appeals struck down what was essentially the nation’s first workmen’s compensation statute. It does not appear in that many casebooks. But it does in some. In an opinion written by Judge William Werner, the court tried to throw itself in front of the coming regulatory state. It failed, of course, at least in the most obvious sense. The regulatory state plays a vast role in the contemporary state, and has for more than three quarters of a century at least. But the Ives case’s engagement with the compensation scheme anticipated the central theme in American tort law in the century since: the relationship between tort adjudication and the common law, on one hand, and the forms of administration, on the other.

MacPherson liberated the common law of negligence in the United States from its traditional constraints and helped better protect victims of defective products regardless of privity of contract. It made its way to other common law jurisdictions—United Kingdom and Australia—where the same result was achieved. MacPherson , however, never made its way to the civil law world—France and Germany—because these jurisdictions did not need it, given that privity of contract was never an obstacle there. The courts upheld products liability suits in the late nineteenth century on the basis of presumed negligence or even strict liability, thus going even beyond what MacPherson achieved.

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.