When one turns to thoughts about judicial law-making during the past fifteen years, he might well at the outset give attention to the area of torts for some outstanding examples. If he does so, he will discover that much of tort law has been rewritten to meet the needs of the vast changes that have been produced in social conditions brought about by a variety of factors, including technology, urbanization, and an increasing population. Roger Traynor, as an Associate Justice and then as Chief Justice of the California Supreme Court, has been one of those in the vanguard of this movement. Many judges are content to apply old rules in a mechanical and repetitious manner, even to entirely new situations, and to espouse the notion of judicial abstention in favor of the legislature, even when change is deemed to be for the public interest. A few judges, without the same reverence for stare decisis, are not so hesitant about making new law to meet new conditions. Roger Traynor is an outstanding example of such a judge. He has not been averse to bringing about wholesale and abrupt change in the basic law by judicial decisions when feasible. Nor has he been reluctant to alter some or make exceptions to a general doctrine in a given area when abrupt changes would produce too much uncertainty or too much confusion unless accomplished through the legislative process, which is more suitable for constructing the details of an entirely new approach.
"Roger Traynor as a Judge,"
Hofstra Law Review: Vol. 2
, Article 2.
Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol2/iss2/2