grew entire bodies of law relating to product liability and enterprise liability that govern many modern suits. Products liability has became so embedded as a distinct category of law that it commands its own field specific Restatement of Law. Thus, in the span of a few decades a Kuhnian revolution in law on this point was nearly complete, with Traynor having moved from heretic to beatified founder. This change could not and did not limit itself to the confines of courts. Businesses are now aware of the fact that they will be held liable whenever their products cause unexpected injuries. This shapes everything from cost benefit analysis of initial production, to price points that ensure adequate reserves, to corporate form choices designed to limit liability. Some argue that the American system has made it too easy for companies to be sued and therefore is thwarting innovation – one of the arguments in the overall tort reform movement. (Kagan 2001). Others look at the same evidence and concur with Traynor that strict liability is an appropriate policy point for a mature industrial or post-industrial society. (Owen 2010). What is undeniable is that courts have dramatically shaped policy in this area, and almost no one would argue today that Justice Traynor’s conduct was illegitimate. Thus, conscious policy making is not intractably inconsistent with the judicial role. How Civil Liberties Cases Have Re-made Police Policy Where Traynor consciously acted as a policy entrepreneur, oftentimes the policy implications of legal action are less obvious, and only play out over time. Frequently courts simply declare the existence of a right or limit on government action as a principle, without meaningfully addressing how it will be implemented as a matter of policy. This approach is sometimes spoken of approvingly as minimalism (Sunstein 1996) as it theoretically permits agencies and others greater freedom of operation to achieve compliance with the pronouncement
This view has persisted even in the face of a mounting body of evidence that judges often decide matters in a way that correlates with their political orientations or other attitudinal factors. Ultimately, the role of courts is and has been very similar to that of other administrators in the networked environment of new public governance. If the public, attorneys and judges are educated realistically and embrace this role, they can and should embrace the potential for the legal system to play a vital role of shaping policy and providing meaningful stewardship of regime values for the foreseeable future. If not, then courts may well wane in significance through a pattern of self-limitation and irrelevance. Works Cited Ackerman, B.A. (1974) “’Law and the Modern Mind” by Jerome Daedalus, Vol. 103, 119-130. Bailey, M.A. and Maltzman, F. (2011) The Constrained Law, Politics and the Decisions Justices Make. Princeton, NJ: Princeton University Press. Bandes, S.A. (2011). “Moral Imagination in Judging.” Washburn Law Review, Vol. 51, 1-24. Baum, L. (2006) Judges and Their Audiences: A Perspective on Judicial Behavior. Princeton, NJ: Princeton University Press. Baumgartner, F.R. and Jones, B.D. (2d ed. 2009), Agendas and Instability in American Politics. Chicago: University of Chicago Press. Beecher-Monas, E. (2011). “Expert Testimony in Civil Cases.” In Henderson, C. and Epstein, J. (Eds.) The Future of Evidence: How Science and Technology Will Change the Practice of Law. Chicago: American Bar Association, 33-76. Bingham, L.B. (2010). “The Next Generation of Administrative Law: Building the Infrastructure for Collaborative Governance”. University of Wisconsin Law Review, 2010 volume, 297-356. Bivens v. Six Unnamed Agents of the Federal Bureau of Narcotics (1971), 403 U.S. 388. Boyd, C.L. (2013) “She’ll Settle It?”. Journal of Law and Courts, Vol. 1, 193-219. Trial: