Dear Eugene:

On the normative side, you might want to examine the works of rights-based theorists such as Robert Stevens (R Stevens, Torts and Rights (Oxford, Oxford University Press, 2007) and Allan Beever (A Beever, Rediscovering the Law of Negligence (Oxford, Hart Publishing, 2007) who discuss this issue in some detail.

Here is the Supreme Court of Canada's take:

Watkins v. Olafson [1989] 2 S.C.R. 750 at p.760-761 (McLachlin J):

 

Generally speaking, the judiciary is bound to apply the rules of law found in the legislation and in the precedents.  Over time, the law in any given area may change; but the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances.  While it may be that some judges are more activist than others, the courts have generally declined to introduce major and far- reaching changes in the rules hitherto accepted as governing the situation before them.

 

There are sound reasons supporting this judicial reluctance to dramatically recast established rules of law.  The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make.  The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases.  Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make.  Major changes to the law often  involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners then by judicial decree.  Finally, and perhaps most importantly, there is the long established principle that in a constitutional democracy it is the legislature, as the elected branch of government which should assume the major responsibility for law reform.

Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435 

On 5/17/2011 2:41 PM, Volokh, Eugene wrote:

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