Roger John Traynor (February 12, 1900 – May 14, 1983) served as the 23rd Chief Justice of the Supreme Court of California from 1964 to 1970, and as an Associate Justice from 1940 to 1964. A nationally-respected jurist, Traynor's thirty-year career as California's 77th Justice coincided with tremendous demographic, social, and governmental growth in California and in the United States of America, and was marked by a belief (in the words of one commentator) that "the increased presence of government in American life was a necessary and beneficial phenomenon."^[1]

Traynor has generally been viewed by the American legal community as the single greatest judge in the history of the California judiciary, and one of the greatest judges in the history of the United States^[2]. His obituary in the New York Times noted that "Traynor was often called one of the greatest judicial talents never to sit on the United States Supreme Court."^[3]

He wrote a 1948 opinion that was the first instance of a state supreme court striking down laws prohibiting miscegenation and wrote a 1952 opinion that abolished the defense of recrimination in the context of divorce and paved the way for the social revolution of no-fault divorce; but his most significant and well-known contribution to contemporary American law is probably his 1963 creation of true strict liability in product liability cases.

An earlier generation of judges had timidly experimented with legal fictions like warranties to avoid leaving severely injured plaintiffs without any recourse. Traynor simply threw those away and imposed strict liability as a matter of public policy.

To those skeptical of the power of government to redress social wrongs, Traynor's extraordinary work is notable for the degree to which it asserted the power of the judiciary to resolve difficult issues of public policy, and to redefine the boundaries of corporate and governmental liability.

Personal life

Traynor was born and raised in the rugged mining town of Park City, Utah by Felix and Elizabeth Traynor, who were impoverished Irish immigrants from Hilltown in what is now Northern Ireland ^[4][5].

In 1919, upon the advice of a high school teacher, he entered the University of California, Berkeley, though he had only $500 in savings to finance his college education ^[6]. Fortunately, he won a scholarship at the end of his first year due to his excellent grades, and went on to earn a B.A. in 1923, a M.A. in 1924, and a Ph.D. in 1926; all these degrees were in political science. He also earned a J.D. from Boalt Hall in 1927. He earned the two latter degrees at the same time, while teaching undergraduates and serving as editor-in-chief of the California Law Review. He was subsequently admitted to the State Bar of California that same year^[7].

On August 23, 1933, Traynor married Madeleine Emilie Lackman, a woman who shared his love of learning: she already held a M.A. in political science from UC Berkeley and would go on to earn a J.D. in 1956^[8]. They had three sons: Michael, Joseph, and Stephen. Only Michael would follow his father into law; he attended Harvard Law School and became a partner with Cooley Godward LLP ^[1].

Early career in academia and government

At UC Berkeley, Traynor wrote groundbreaking articles on taxation, and became a full professor in 1936^[9]. He also acted as a consultant to the California State Board of Equalization from 1932 to 1940, and to the United States Department of the Treasury from 1937 to 1940. He took a leave of absence from the University in 1933 to work full-time for the Board of Equalization, and another leave in 1937 to help the Treasury Department draft the Revenue Act of 1938 (the precursor of the modern Internal Revenue Code)^[10].

Through his work for the Board of Equalization during the Great Depression, Traynor was responsible for creating much of California's modern tax regime, including the vehicle registration fee (1933), sales tax (1933), income tax (1935), use tax (1935), corporate income tax (1937), and fuel tax (1937)^[11]. He served as the first administrator of the California sales tax and supervised its deployment across 200,000 retailers.^[12]

In January 1940, he started working part-time as a Deputy Attorney General under California Attorney General Earl Warren (who later became Chief Justice of the United States Supreme Court)^[13]. He also started serving as Acting Dean of Boalt Hall, UC Berkeley's law school^[14].

On July 31, 1940, Traynor was nominated to the Supreme Court of California by Governor Culbert Olson. He was unanimously confirmed by the Qualifications Committee on August 13 and was sworn in the same day^[15].

Contributions to the law

During his long and distinguished career, Traynor authored more than 900 opinions, and he gained a reputation as the nation's leading state court judge.^[16][17] During his tenure, the decisions of the Supreme Court of California became the most frequently cited by all other state courts in the nation.[18]

Several of these decisions were majority opinions that transformed California from a conservative and somewhat repressive state into a progressive, innovative jurisdiction in the forefront of American law.^[19] In opinions written by Traynor, California adopted or developed:

• true strict liability in tort for defective products (see product liability) in Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57 (1963), which a 1996 panel of tort law experts subsequently ranked as the top development in tort law of the past 50 years ^[20]; Traynor's influence over strict liability in product liability tort cases can be traced back to his concurrence in Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453 (1944).
• the extension of such strict liability from manufacturers to retailers and all others involved in the "overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products," in Vandermark v. Ford Motor Co., 61 Cal. 2d 256 (1964);
• the cause of action for intentional infliction of emotional distress (IIED) in State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal. 2d 330 (1952);
• the "moderate and restrained interpretation" doctrine for resolving conflict-of-laws problems, in Bernkrant v. Fowler, 55 Cal. 2d 588 (1961) [21];
• the rule that majority shareholders of closely held corporations have a duty to not destroy the value of the shares held by minority shareholders, in Jones v. H. F. Ahmanson & Co., 1 Cal. 3d 93 (1969) [22];
• the rule that extrinsic evidence of trade usage or custom is admissible where relevant to prove a meaning to which the language of a contract is reasonably susceptible, in Pacific Gas & Elec. Co. v. G. W. Thomas Drayage Co., 69 Cal. 2d 33 (1968) [23];
• the exclusionary rule barring admissibility of evidence obtained in violation of the Fourth Amendment to the United States Constitution (as suggested by the U.S. Supreme Court in Wolf v. Colorado, 338 U.S. 25 (1949)) in People v. Cahan, 44 Cal. 2d 434 (1955) [24] (though Cahan would be rendered moot by Mapp v. Ohio, 367 U.S. 643 (1961));
• the nonmutual collateral estoppel doctrine in Bernhard v. Bank of America, 19 Cal. 2d 807 (1942) [25], under which a litigant could be collaterally estopped from relitigating an issue that had been previously decided in an earlier suit against a different party.

—and also abolished:

• the doctrine of sovereign immunity, in Muskopf v. Corning Hospital District, 55 Cal. 2d 211 (1961) [26], although the Legislature promptly overrode Muskopf with the Tort Claims Act of 1963 as explained in Biggers v. Sacramento City Unified School District, 25 Cal. App. 3d 269 (1972) [27];
• the defense of recrimination in the context of divorce, in De Burgh v. De Burgh, 39 Cal. 2d 858 (1952) [28];
• a state law prohibiting miscegenation, Civil Code Section 69, in Perez v. Sharp, 32 Cal. 2d 711 (1948) [29]. The Supreme Court of California was the first state supreme court to abolish such laws.

Traynor was also noted for the quality of his writing and reasoning^[30], and was honored during his lifetime with membership in the American Academy of Arts and Sciences (a rare honor for a judge)^[31]. Many of his opinions are still mandatory reading for American law students.

Criticism

The liberal tendencies of much of Traynor's work has since made him the subject of extensive criticism from American libertarians and conservatives, and tort reformers have often grouped Traynor together with Earl Warren as examples of judicial activists. For example, the conservative magazine National Review attacked Traynor's reasoning in the Pacific Gas and Electric case in a 1991 cover story^[32].

In 1998, Regulation (the Cato Institute's journal) published a harsh critique of the California tort law system by Stephen Hayward. He claimed that "rather than protecting life, liberty, and property, [it] has ... become a threat to these."^[33] In blunt language apparently based upon a misunderstanding of the extent of judicial power under the rule of stare decisis, Hayward identified Roger Traynor's liberalizing influence on the Court's view of liability as "the first breach":

In the 1944 case of Escola v. Coca Cola Bottling Co. [34] ... Traynor introduced the idea of broad social fault. "I believe," Traynor wrote, "the manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to recover in cases like the present one." .... "Even if there is no negligence," Traynor wrote further, "public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market." Note the appeal to the demands of public policy, rather than law .... While this line of reasoning might be the basis for a legislative debate over which public policies should be adopted to allocate and compensate for risk, Justice Traynor's opinion represents a clear case of legislation by judicial fiat.

In a 1966 essay addressed to both the legal community of his time and future generations, Traynor defended his judicial philosophy:

There are always some who note with alarm any appellate opinion that goes beyond a mechanical canvass of more or less established precedents. They include the diehards, dead set against all but familiar routines. They include the slothful, who would rationalize their own inertia. They also include carpers hostile toward any enlightenment, who would knowingly impair judicial vigil by keeping the visibility low. Slyly they equate justice with the blindfold image without articulating the corollary that decision would then be reduced to a blind toss of the coin. They do not state how problematic are the problems that reach the Supreme Court, and how great the need for judicial reasoning beyond formulas.^[35]

Retirement

On January 2, 1970, Traynor announced his retirement in order to avoid losing eligibility for retirement benefits under a California law that stripped judges of most benefits if they chose to remain on the bench past the age of 70^[36]. He retired to Berkeley and subsequently died there in his home from cancer.

In July of 1983, the California Law Review gave over all its space in issue 4, volume 71 to publishing eloquent tributes to Justice Traynor from several esteemed judges, law professors, and politicians, including Warren Burger ^[37], Henry Friendly ^[38], and Edmund G. Brown ^[39].

References

^  Anonymous, "Chief Explains New Sales Law: Director Traynor Clears Up Disputed Points," Los Angeles Times, 4 August 1933, 11.

^  Anonymous, "Coast Chief Justice to Resign; Reagan Will Choose Successor," New York Times, 3 January 1970, 7.

^  Edmund G. Brown, "A judicial giant," California Law Review 71, no. 4 (July 1983): 1053-1054.

^  Warren Burger, "A tribute," California Law Review 71, no. 4 (July 1983): 1037-1038.

^  L. Gordon Crovitz and Stephen Bates, "How law destroys order," National Review, 11 February 1991, 28-33.

^  Don J. DeBenedictis, "Traynor dies at 83: led state court in progressive era," Los Angeles Daily Journal, 17 May 1983, 1.

^  Lawrence M. Friedman, A History of American Law, (New York: Simon & Schuster, 1985), 688.

^  Henry J. Friendly, "Ablest judge of his generation," California Law Review 71, no. 4 (July 1983): 1039-1044.

^  Stephen Hayward, "Golden Lawsuits in the Golden State," Regulation 17, no. 3 (Summer 1998). [40]

^  J. Edward Johnson, "Roger J. Traynor," in History of the Supreme Court Justices of California: Volume II, 1900-1950, ed. J. Edward Johnson, 182-196 (San Francisco: Bancroft-Whitney Company, 1966), 182-184.

^  Johnson, 184.

^  Johnson, 186.

^  Johnson, 187.

^  Johnson, 187-188.

^  Johnson, 189.

^  Johnson, 190.

^  Johnson, 191.

^  Johnson, 192.

^  Johnson, 193.

^  Les Ledbetter, "Roger J. Traynor, California Justice," New York Times, 17 May 1983, B6.

^  Roger J. Traynor, "The Supreme Court's Watch On The Law," in History of the Supreme Court Justices of California: Volume II, 1900-1950, ed. J. Edward Johnson, 206-211 (San Francisco: Bancroft-Whitney Company, 1966), 211.

^  G. Edward White, "Introduction," in The Traynor Reader: A Collection of Essays by the Honorable Roger J. Traynor, (San Francisco: The Hastings Law Journal, Hastings College of the Law, 1987) [41]

^  Jeffrey Robert White, "Top 10 in torts: evolution in the common law," Trial 32, no. 7 (July 1996): 50-53.

^  Irving Younger, "Legal Writing All-Stars," ABA Journal 72, no. 12 (December 1986): 94-95.

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