Atlanta’s John Marshall Law School (AJMLS) congratulates Professor Jeffrey A. Van Detta on his recent publication released by the Touro Law Review, in Issue 1 of Volume 41:
Professor Van Detta’s article combines legal history with tort law doctrine to reveal the unexpected story of how difficult it was for a famous precedent to actually be adopted and followed in the very state where it was decided.
Professor Van Detta provides the following abstract for his article:
This article aims to tell the story of how the various Departments of the New York State Appellate Division sometimes helped—and just as often hindered—the development of the product-injury law in the wake of MacPherson v. Buick Motor Company (1916). Hailed for loosening the privity requirement that barred persons injured by products from suing manufacturers and suppliers for negligence, MacPherson has become the stuff of legal legend. No one put it more picturesquely than Dean William L. Prosser, who in a justly famous law review article described privity as a “citadel” and presented MacPherson’s author, Judge Benjamin Nathan Cardozo, as a judicial superhero, leaping outdated law in a single bound: “Cardozo, wielding a mighty axe, burst over the ramparts, and buried the general rule under the exception.” But just as Rome didn’t decline and fall in a single day, privity wasn’t vanquished in a single decision — even one as memorably wrought as MacPherson. While Prosser’s larger-than-life legend of MacPherson has endured, this legend, like many myths, is incomplete. It omits the real struggle of MacPherson to live up either to the myth or to its initial promise. Particularly noteworthy is the difficult treatment MacPherson got in New York’s four Appellate Divisions, whose decisions grappling with MacPherson over the next thirty years establish that the tale is not one of the “mighty axe.” Instead, we find an ox-cart’s slogging journey, wheels laden with heavy mud, fighting to take one step forward to every two steps back. This slow progress in the Appellate Divisions contrasts sharply with the more rapid embrace MacPherson’s full implications enjoyed in other appellate courts, not only in many other American states and the federal system, but also in common-law courts abroad. Indeed, MacPherson‘s journey through the New York Appellate Divisions demonstrates that traditional accounts of doctrinal progress may not adequately account for the profound role that mid-level appeals courts play in the timeline and scope of what later comes to be seen as a legal revolution. MacPherson‘s struggle — one step forward, two steps back — also illuminates the origins and vital role of mid-level appellate courts in America during the twentieth century, whose legacy continues into the twenty-first.
Professor Van Detta has long emphasized the integral relationship between his classroom teaching and his legal scholarship. This article epitomizes that connection. He explains that “the inspiration for this article came from a case synthesis exercise using Appellate Division decisions dealing with MacPherson that I designed and worked through with my Spring 2024 Evening Torts II class. That exercise, in turn, had been inspired by Paul Figley, Teaching Rule Synthesis With Real Cases, 61 J. Legal Ed. 245 (2011).” Professor Van Detta also brought to the equation his experiences as a law clerk for two different appellate judges: From 1987-1988, he served as Law Clerk to Hon. Roger J. Miner, U.S. Second Circuit Court of Appeals. He also got a first-hand look at the Appellate Division’s operations when he was Summer Law Clerk to Hon. Howard A. Levine, Appellate Division Third Department, in 1985, where he drafted one of Justice Levine’s most significant opinions that year, People v. Wheeler, 491 N.Y.S.2d 206 (App. Div. 1985), aff’d mem., 494 N.E.2d 88 (N.Y. 1986).