Hi Eugene:

I can't recall any article that is regarded as a classic on this general topic, though it seems like there ought to be one.

For another episode that may have sparked some commentary on the topic, you might look at analyses of the adoption of comparative fault by the Tennessee Supreme Court in McIntyre v Balentine (1992). If memory serves — increasingly, it doesn't ! -- McIntyre is interesting in part because the TN SCt had previously declined to adopt comparative fault on grounds of institutional competence while at the same time inviting the state legislature to take on that task, then got fed up with the legislature's inaction and went ahead and adopted the doctrine.

From: "Volokh, Eugene" <VOLOKH@law.ucla.edu>
Date: Tue, 17 May 2011 11:41:52 -0700
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Judges in tort cases saying that a proposed extension of tort liability should be left to the legislature

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:	John Goldberg <jgoldberg@law.harvard.edu>
To:	Volokh, Eugene <VOLOKH@law.ucla.edu>
	obligations@uwo.ca
Date:	18/05/2011 01:39:51 UTC
Subject:	Re: Judges in tort cases saying that a proposed extension of tort liability should be left to the legislature