Roger J. Traynor

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Roger J. Traynor
Roger J. Traynor.png
23rd Chief Justice of California
In office
September 1, 1964 – February 2, 1970
Appointed byPat Brown
Preceded byPhil S. Gibson
Succeeded byDonald R. Wright
Associate Justice of the California Supreme Court
In office
August 13, 1940 – September 1, 1964
Appointed byCulbert Olson
Preceded byPhil S. Gibson
Succeeded byStanley Mosk
Personal details
Roger John Traynor

February 12, 1900
Park City, Utah, U.S.
DiedMay 14, 1983(1983-05-14) (aged 83)
Berkeley, California, U.S.
Madeline E. Lackman
(m. 1933)
ChildrenMichael J. Traynor, Joseph M. Traynor, and Stephen C. Traynor
Alma materUniversity of California, Berkeley (B.A., M.A., Ph.D., J.D.)

Roger John Traynor (February 12, 1900 – May 14, 1983) was the 23rd Chief Justice of California (1964-1970) and an associate justice of the Supreme Court of California from 1940 to 1964.[1] Previously, he had served as a Deputy Attorney General of California under Earl Warren, and an Acting Dean and Professor of UC Berkeley School of Law.[2][3] He is widely considered to be one of the most creative and influential judges and legal scholars of his time.[2][4][5][6][7][8][9]

A jurist noted for liberalism and activism, Traynor's 30-year career as California's 77th Justice coincided with tremendous demographic, social, and governmental growth in California and in the United States of America.[2][4] Traynor believed (in the words of his biographer, G. Edward White) that "the increased presence of government in American life was a necessary and beneficial phenomenon."[10] After his retirement from the California Supreme Court, Traynor spent the last years of his life as a professor at the UC Hastings College of Law.[2][3]

Early life and education[edit]

Traynor was born and raised in Park City, Utah, then a hardscrabble mining town, at the turn of the century by Felix and Elizabeth Traynor. His parents were impoverished Irish immigrants from Hilltown, County Down.[11][12]

In 1919, upon the advice of a high school teacher, he entered the University of California, Berkeley, though he had only $500 in savings to finance his college education.[11] Fortunately, he won a scholarship at the end of his first year due to his excellent grades, and went on to earn a B.A. in 1923, an M.A. in 1924, and a Ph.D. in 1926; all these degrees were in political science. He also earned a J.D. from Boalt Hall, UC Berkeley's law school, in 1927. He earned the two latter degrees at the same time, while also teaching undergraduates and serving as editor-in-chief of the California Law Review. He was subsequently admitted to the State Bar of California that same year.[11]

Academics and politics[edit]

UC Berkeley[edit]

At Boalt Hall of UC Berkeley, Traynor wrote groundbreaking articles on taxation, while serving as editor-in-chief of the California Law Review, and became a full-time professor in 1936.[11] In 1939, he started serving as the Acting Dean of Boalt Hall at UC Berkeley, where he had earned his J.D. degree.[13]

Political positions[edit]

While he was a faculty member of the Berkeley Law School, Traynor also acted as a consultant to the California State Board of Equalization from 1932 to 1940, and to the United States Department of the Treasury from 1937 to 1940.[14][15] In particular, he took a leave of absence from Berkeley in 1933 to work full-time for the Board of Equalization, and another leave in 1937 to help the Treasury Department draft the Revenue Act of 1938.[11]

Before the Great Depression, nearly all California governmental functions were funded only through a general property tax on both real and personal property. This proved unworkable when property values collapsed. Through his work for the Board of Equalization, Traynor was responsible for creating much of California's modern tax regime, including the vehicle registration fee (1933), sales tax (1933), income tax (1935), use tax (1935), corporate income tax (1937), and fuel tax (1937).[11] He also served as the first administrator of the California sales tax and supervised its deployment across 200,000 retailers.[16][17][18]

In January 1940, he started working part-time as a Deputy Attorney General under California Attorney General Earl Warren (who later became Chief Justice of the United States).[11]

UC Hastings and others[edit]

After retiring from the Supreme Court of California in 1970, Traynor became a professor at the UC Hastings College of Law.[2][3] He also spent some time visiting and teaching at the law schools of University of Utah, University of Virginia, and the University of Cambridge.[2][3]

California Supreme Court[edit]


On July 31, 1940, Traynor was nominated to the Supreme Court of California by Governor Culbert Olson.[19][20] He was unanimously confirmed by the Qualifications Committee on August 13 and was sworn in the same day.[11][21] In December 1940, he was retained by the voters in the election.[22][23] In August 1964, Chief Justice Phil S. Gibson stepped down from the bench, and Governor Pat Brown appointed Traynor to the post.[24]

Recognition and reputation[edit]

His obituary in the New York Times noted that "Traynor was often called one of the greatest judicial talents never to sit on the United States Supreme Court."[4][25]

Traynor authored more than 900 opinions, and he gained a reputation as the nation's leading state court judge.[25][11][26][27] During his tenure, the decisions of the Supreme Court of California became the most frequently cited by all other state courts in the nation. Several of Traynor's decisions were majority opinions that transformed California from a conservative and somewhat repressive state into a progressive, innovative jurisdiction in the forefront of American law.[28]

Traynor was also noted for the quality of his writing and reasoning,[29] and was honored during his lifetime with membership in the American Academy of Arts and Sciences (a rare honor for a judge).[11] Many of his opinions are still mandatory reading for American law students. Also, Traynor did not uniformly join all opinions that could be characterized as "liberal" or "progressive" during his time on the Court; for example, he filed a two-sentence dissent in the landmark case of Dillon v. Legg (1968),[30] which was a major step towards the modern tort of negligent infliction of emotional distress.

His 1948 opinion in Perez v. Sharp was the first instance of a state supreme court striking down a statute prohibiting miscegenation. Traynor also wrote a 1952 opinion that abolished the defense of recrimination in the context of divorce and paved the way for the social revolution of no-fault divorce. But his most significant and well-known contribution to contemporary American law is probably his 1963 creation of true strict liability in product liability cases. An earlier generation of judges had cautiously experimented with legal fictions like warranties to avoid leaving severely injured plaintiffs without any recourse. Traynor simply threw those away and imposed strict liability as a matter of public policy.[citation needed]

To those skeptical of government's power to redress social wrongs, Traynor's extraordinary work is notable for the degree to which it asserted the judiciary's power to resolve difficult issues of public policy, and to redefine the boundaries of corporate and governmental liability. In his biography of Traynor, White wrote: "If California was a testing ground for governmental theories of modern liberalism, Traynor was an architect of a judicial role compatible with the activities of the modern liberal state."[31]

In July 1983, the California Law Review gave over all its space in issue 4, volume 71 to publishing eloquent tributes to Justice Traynor from several esteemed judges, law professors, and politicians, including Warren Burger, Henry Friendly, and Edmund G. Brown.[32]


The liberal tendencies of much of Traynor's work has since made him the subject of extensive criticism from American libertarians and conservatives, and tort reformers have often grouped Traynor together with Earl Warren as examples of judicial activists. For example, the conservative magazine National Review attacked Traynor's reasoning in the Pacific Gas and Electric Company case (Pacific Gas & Elec. Co. v. G. W. Thomas Drayage Co., 69 Cal. 2d 33 (1968)) in a 1991 cover story.[33]

In 1998, Regulation (the Cato Institute's journal) published a harsh critique of the California tort law system by Stephen Hayward. He claimed that "rather than protecting life, liberty, and property, [it] has ... become a threat to these."[34] In blunt language, Hayward identified Roger Traynor's liberalizing influence on the Court's view of liability as "the first breach":

In the 1944 case of Escola v. Coca Cola Bottling Co.[35] ... Traynor introduced the idea of broad social fault. "I believe," Traynor wrote, "the manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to recover in cases like the present one." .... "Even if there is no negligence," Traynor wrote further, "public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market." Note the appeal to the demands of public policy, rather than law .... While this line of reasoning might be the basis for a legislative debate over which public policies should be adopted to allocate and compensate for risk, Justice Traynor's opinion represents a clear case of legislation by judicial fiat.

In a 1966 essay addressed to both the legal community of his time and future generations, Traynor defended his judicial philosophy:

There are always some who note with alarm any appellate opinion that goes beyond a mechanical canvass of more or less established precedents. They include the diehards, dead set against all but familiar routines. They include the slothful, who would rationalize their own inertia. They also include carpers hostile toward any enlightenment, who would knowingly impair judicial vigil by keeping the visibility low. Slyly they equate justice with the blindfold image without articulating the corollary that decision would then be reduced to a blind toss of the coin. They do not state how problematic are the problems that reach the Supreme Court, and how great the need for judicial reasoning beyond formulas.[36]


On January 2, 1970, Traynor announced his retirement in order to avoid losing eligibility for retirement benefits under a California law that stripped judges of most benefits if they chose to remain on the bench past age 70.[37][38] He became chairman of the National News Council, concerned with freedom of the press.[39][40][41] Afterwards, he retired to Berkeley and died there in his home from cancer.

List of cases[edit]

Personal life[edit]

On August 23, 1933, Traynor married Madeleine Emilie Lackman, a woman who shared his love of learning: she already held a M.A. in political science from UC Berkeley and would go on to earn a J.D. in 1956.[11] They had three sons: Michael, Joseph, and Stephen. Michael followed his father into law; he attended Harvard Law School, became a partner with Cooley Godward Kronish LLP, and has served as president of The American Law Institute.[43][44]

See also[edit]


  1. ^ "Past & Present Justices". Retrieved 2019-10-03.
  2. ^ a b c d e f "University of California: In Memoriam, 1985". Retrieved 2019-10-03.
  3. ^ a b c d McCall, James R. (1984). "Roger Traynor: Teacher, Jurist, and Friend". Hastings Law Journal.
  4. ^ a b c Les Ledbetter, "Roger J. Traynor, California Justice", New York Times, 17 May 1983, B6. Retrieved October 3, 2017.
  5. ^ "Chief Justice Roger J. Traynor | California Supreme Court Resources". Retrieved 2019-10-03.
  6. ^ "Arthur J. Morris Law Library | People | Roger J. Traynor". Retrieved 2019-10-03.
  7. ^ Tobriner, Mathew O. (1970). "Chief Justice Roger Traynor". Harvard Law Review. 83 (8): 1769–1772. ISSN 0017-811X. JSTOR 1339686.
  8. ^ Roth, Elizabeth (1983). "The Two Voices of Roger Traynor". The American Journal of Legal History. 27 (3): 269–301. doi:10.2307/845157. ISSN 0002-9319. JSTOR 845157.
  9. ^ Sabine, James E.; Clark, Robert S. (1980). "The Writings of Chief Justice Roger J. Traynor". BYU Law Review. 1980.
  10. ^ White, G. Edward (1987). "Introduction," in The Traynor Reader: A Collection of Essays by the Honorable Roger J. Traynor. San Francisco: The Hastings Law Journal, Hastings College of the Law.
  11. ^ a b c d e f g h i j k Johnson, J. Edward (1966). History of Supreme Court, Vol 2, Justices, 1900–1950 (PDF). San Francisco, CA: Bancroft-Whitney Co. pp. 182–196. Archived from the original (PDF) on 22 July 2018. Retrieved October 3, 2017.
  12. ^ Ledbetter, Les (May 17, 1983). "Roger J. Traynor, California Justice". New York Times. p. B7. Retrieved October 6, 2017.
  13. ^ Braitman, Jacqueline R.; Uelmen, Gerald F. (2012). Justice Stanley Mosk: A Life at the Center of California Politics and Justice. McFarland. p. 48. ISBN 978-0786468416.
  14. ^ "Sales Taxes Cause Upset of Business". Madera Tribune. No. 79. California Digital Newspaper Collection. 2 August 1933. p. 1. Retrieved October 3, 2017.
  15. ^ "Officers to Collect Sales Tax Selected". San Bernardino Sun. No. 39. California Digital Newspaper Collection. UPI. 3 August 1933. p. 15. Retrieved October 3, 2017. Roger J. Traynor, on leave from the University of California law school, was named division chief yesterday.
  16. ^ "Divide State for Sales Tax". San Bernardino Sun. No. 39. California Digital Newspaper Collection. Associated Press. 9 August 1933. p. 1. Retrieved October 3, 2017.
  17. ^ "Business Men Confer With State Board About Troublesome Sales Tax Features". San Bernardino Sun. No. 39. California Digital Newspaper Collection. Associated Press. 12 August 1933. p. 1. Retrieved October 3, 2017.
  18. ^ "Chief Explains New Sales Law: Director Traynor Clears Up Disputed Points," Los Angeles Times, 4 August 1933, 11.
  19. ^ "Has Another Try Complete Court". Madera Tribune. No. 80. California Digital Newspaper Collection. July 31, 1940. p. 1. Retrieved October 3, 2017.
  20. ^ Dunlap, Jack W. (August 5, 1940). "Politically Speaking: Warren Rebukes Olson, Governor Names Traynor, Youthful, Inexperienced". Healdsburg Tribune, Enterprise and Scimitar. No. 88. California Digital Newspaper Collection. UPI. p. 2. Retrieved October 3, 2017.
  21. ^ "Traynor Accepted in Supreme Court, University Professor Takes Oath of Office". Madera Tribune. California Digital Newspaper Collection. 14 August 1940. p. 1. Retrieved October 3, 2017.
  22. ^ Dunlap, Jack W. (31 October 1940). "Politically Speaking: California is the Key State". Healdsburg Tribune, Enterprise and Scimitar. No. 9. California Digital Newspaper Collection. UPI. p. 4. Retrieved October 3, 2017.
  23. ^ "Johnson's Vote Makes Record in California". Healdsburg Tribune, Enterprise and Scimitar. No. 20. California Digital Newspaper Collection. UPI. 9 December 1940. p. 1. Retrieved October 3, 2017.
  24. ^ "Lynch Takes Mosk's Place, Swears Him In". Madera Tribune. No. 79. California Digital Newspaper Collection. 1 September 1964. p. 2. Retrieved October 3, 2017.
  25. ^ a b Lawrence M. Friedman, A History of American Law 3rd ed. (New York: Simon & Schuster, 2005), pp. 551, 688. ISBN 0743282582. Retrieved October 3, 2017.
  26. ^ "Editorial: Wright: Justice of Principle". San Bernardino Sun. California Digital Newspaper Collection. March 28, 1985. p. 10. Retrieved October 3, 2017. Roger J. Traynor, an internationally respected jurist
  27. ^ "Editorial: Phil Gibson's Efforts Forged Modern, Efficient Court System". San Bernardino Sun. California Digital Newspaper Collection. May 1, 1984. p. 12. Retrieved October 3, 2017. the membership of the court, which included such unusually gifted jurists as Roger J. Traynor
  28. ^ D.J. DeBenedictis, "Traynor dies at 83: led state court in progressive era," Los Angeles Daily Journal, May 17, 1983, pg. 1
  29. ^ Irving Younger, "Legal Writing All-Stars," ABA Journal 72, no. 12 (December 1986): 94–95.
  30. ^ Dillon v. Legg (1968), 68 Cal. 2d 728
  31. ^ G. Edward White, American Judicial Tradition: Profiles of Leading American Judges, 3rd ed. (New York: Oxford University Press US, 2007), p. 247; ISBN 019972430X
  32. ^ Warren Burger, "A tribute," California Law Review 71, no. 4 (July 1983): 1037–1038, Henry J. Friendly, "Ablest judge of his generation," California Law Review 71, no. 4 (July 1983): 1039–1044 and Edmund G. Brown, "A judicial giant," California Law Review 71, no. 4 (July 1983): 1053–1054.
  33. ^ L. Gordon Crovitz and Stephen Bates, "How law destroys order," National Review, 11 February 1991, 28–33
  34. ^ Stephen Hayward, "Golden Lawsuits in the Golden State", Regulation 17, no. 3 (Summer 1998).
  35. ^ Escola v. Coca Cola Bottling Co. (1944), 50 P.2d 436, 24 Cal. 2d 453.
  36. ^ Roger J. Traynor, "The Supreme Court's Watch On The Law," in History of the Supreme Court Justices of California: Volume II, 1900–1950, ed. J. Edward Johnson, 206–211 (San Francisco: Bancroft-Whitney Company, 1966), 211. Retrieved October 3, 2017.
  37. ^ "Reagan Has First Chance To Name a State Justice". Desert Sun. No. 130. California Digital Newspaper Collection. UPI. 5 January 1970. p. 8. Retrieved October 3, 2017.
  38. ^ "Coast Chief Justice to Resign; Reagan Will Choose Successor," New York Times, 3 January 1970, 7.
  39. ^ "'Freedom of Press' Has Own Roadblocks". Desert Sun. California Digital Newspaper Collection. UPI. 3 July 1973. p. A3. Retrieved October 3, 2017.
  40. ^ "Florida Rule Threat to Freedom of Press". Desert Sun. California Digital Newspaper Collection. UPI. 10 November 1973. p. 3A. Retrieved October 3, 2017.
  41. ^ "Nixon's Charges Under Study". Desert Sun. California Digital Newspaper Collection. Capitol News Service. 17 November 1973. p. A4. Retrieved October 3, 2017.
  42. ^ Jeffrey Robert White, "Top 10 in torts: evolution in the common law," Trial 32, no. 7 (July 1996): 50–53.
  43. ^ "Press release: Cooley Litigator, Michael Traynor, Named to American Academy of Appellate Lawyers". Cooley Godward LLP. April 12, 2006. Retrieved October 3, 2017.
  44. ^ Michael Traynor profile, Retrieved October 3, 2017.


Further reading[edit]

External links[edit]

Legal offices
Preceded by Associate Justice of the Supreme Court of California
August 13, 1940 – September 1, 1964
Succeeded by
Chief Justice of California
September 1, 1964 – February 2, 1970
Succeeded by