Eugene:

My favorite example of this is Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902). The plaintiff's lawyer expressly drew upon the famous 1890 Warren and Brandeis Harvard Law Review article on the Right of Privacy to argue that the New York Court of Appeals should expressly recognize a right of privacy. The majority rejected the argument in significant part on the ground that the courts are "without authority to legislate." Not too long after this decision was published, and as a result of the decision, the legislature of New York did in fact create a statute protecting the right of privacy and permitting private rights of action for damages and injunctive relief.

Regards,

Ben Zipursky

>>> "Volokh, Eugene" 05/17/11 2:42 PM >>>

Dear colleagues: Judges in tort cases sometimes reject a proposed extension of tort liability on the grounds that it should be left to the legislature (and not just in cases where there?s already a statute foreclosing such liability, which can indeed only be modified by the legislature). The judges obviously recognize that they have the power to create new tort law rules, and that most tort law rules were indeed created by judges; but in some situations, they conclude that they shouldn?t make certain decisions, and that it is only the legislature that should be able to make them. Are there any good articles that discuss this as a general matter, both descriptively and normatively? Many thanks,

Eugene Volokh

UCLA School of Law

From:	Benjamin Zipursky <bzipursky@law.fordham.edu>
To:	VOLOKH@law.ucla.edu
	obligations@uwo.ca
Date:	17/05/2011 21:19:16 UTC
Subject:	Re: Judges in tort cases saying that a proposed extension of tort liability should be left to the legislature