Vanderbilt Law Review

First Page



Painfully slow as the mills of law reform grind, they have moved faster in our generation than in most. This appraisal may seem overly generous to our own day when we reflect on the difficulties and delays encountered in achieving some particular reform. But if we measure progress in another way--comparing what has happened in the last dozen years with what happened in other time periods of similar length--differences emerge. The most easily documented difference concerns the performance of appellate courts of last resort in reforming private law by candidly overruling precedents. In the last dozen years, there have been more than 100 overruling decisions in the area of tort law alone. This innovative activity has extended to other areas of law as well, though perhaps in fewer instances, and it reflects a very different general attitude among appellate judges toward their role in law reform. More precisely, it reflects a different attitude on the part of some judges in some courts. For although a slight majority of the courts of last resort in the United States have participated in this movement, less than a majority have rendered more than one major overruling decision. Surely we cannot regard that performance as spectacularly innovative. Yet it is cause for credit-or possibly blame, depending upon one's perspective-that the pace of judicial law reform has been somewhat faster since the late 1950's than it had been before.