Was Prosser's Folly Also Traynor's? or Should the Judge's Monument be Moved to a Firmer Site?

Authors

Reed Dickerson

Abstract

The burden of the following analysis is that, under the doctrine of legislative supremacy, courts should respect not only the text of a statute but its negative implications. To this end they should fully and objectively explicate it. Unfortunately, there is reason to believe that, in the case of the Uniform Commercial Code, many courts have been beguiled by the Restatement (Second) of Torts into subverting these principles.

More specifically, the Code has a legislative reach, within the domain of products liability, that has been materially frustrated by simplistic, probably spurious, and ultimately irrelevant distinctions between "tort" and "contract," and, perhaps, even by irrelevant distinctions between "warranty" and "non-warranty." Such frustrations have lain largely undetected, their visibility sharply reduced by their having been clothed in verbiage seemingly unrelated to the Code.

What part, if any, has Justice Traynor played in this misadventure?

Recommended Citation

Dickerson, Reed (1974) "Was Prosser's Folly Also Traynor's? or Should the Judge's Monument be Moved to a Firmer Site?," Hofstra Law Review: Vol. 2: Iss. 2, Article 5.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol2/iss2/5