Courting Justice: Ten New Jersey Cases That Shook the Nation

By Paul L. Tractenberg, Deborah T. Poritz, John B. Wefing and 11 more

Since 1947 a modernized New Jersey Supreme Court has played an important and controversial role in the state, nation, and world.  Its decisions in cutting-edge cases have confronted society’s toughest issues, reflecting changing social attitudes, modern life’s complexities, and new technologies.

Paul Tractenberg has selected ten of the court’s landmark decisions between 1960 and 2011 to illustrate its extensive involvement in major public issues, and to assess its impact. Each case chapter is authored by a distinguished academic or professional expert, several of whom were deeply involved in the cases’ litigation, enabling them to provide special insights. An overview chapter provides context for the court’s distinctive activity.

Many of the cases are so widely known that they have become part of the national conversation about law and policy. In the Karen Ann Quinlan decision, the court determined the right of privacy extends to refusing life-sustaining treatment. The Baby M case reined in surrogate parenting and focused on the child’s best interests. In the Mount Laurel decision, the court sought to increase affordable housing for low- and moderate-income residents throughout the state. The Megan’s Law case upheld legal regulation of sex offender community notification. A series of decisions known as Abbott/Robinson required the state to fund poor urban school districts at least on par with suburban districts.

Other less well known cases still have great public importance. Henningsen v. Bloomfield Motors reshaped product liability and tort law to protect consumers injured by defective cars; State v. Hunt shielded privacy rights from unwarranted searches beyond federal standards; Lehmann v. Toys ‘R’ Us protected employees from sexual harassment and a hostile work environment; Right to Choose v. Byrne expanded state constitutional abortion rights beyond the federal constitution; and Marini v. Ireland protected low-income tenants against removal from their homes.   

For some observers, the New Jersey Supreme Court represents the worst of judicial activism; others laud it for being, in its words, “the designated last-resort guarantor of the Constitution's command.” For Tractenberg, the court’s activism means it tends to find for the less powerful over the more powerful and for the public good against private interests, an approach he applauds.

• Language: English
• Publisher: Rutgers University Press
• Release date: Jul 23, 2013
• ISBN: 9780813570174

Book preview

Courting Justice

Rivergate Regionals

Rivergate Regionals is a collection of books published by Rutgers University Press focusing on New Jersey and the surrounding area. Since its founding in 1936, Rutgers University Press has been devoted to serving the people of New Jersey, and this collection solidifies that tradition. The books in the Rivergate Regionals Collection explore history, politics, nature and the environment, recreation, sports, health and medicine, and the arts. By incorporating the collection within the larger Rutgers University Press editorial program, the Rivergate Regionals Collection enhances our commitment to publishing the best books about our great state and the surrounding region.

Courting Justice

Ten New Jersey Cases That Shook the Nation

Paul L. Tractenberg, editor

Foreword by Deborah T. Poritz

Rutgers University Press

New Brunswick, New Jersey, and London

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Courting justice: ten New Jersey cases that shook the nation / Paul L. Tractenberg, editor; foreword by Deborah T. Poritz.

p. cm.

Includes bibliographical references.

ISBN 978–0–8135–6160–8 (pbk.: alk. paper) — ISBN 978–0–8135–6160–8 (e-book)

Trials—New Jersey. 2. Law—New Jersey—Popular works. 3. Civil rights—New Jersey—Popular works. I. Tractenberg, Paul L., 1938–

KF220.N486 2013

347.749'07—dc23 2012038530

A British Cataloging-in-Publication record for this book is available from the British Library.

This collection copyright © 2013 by Rutgers, The State University

Individual chapters copyright © 2013 in the names of their authors.

All rights reserved

No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, or by any information storage and retrieval system, without written permission from the publisher. Please contact Rutgers University Press, 106 Somerset Street, New Brunswick, NJ 08901. The only exception to this prohibition is fair use as defined by U.S. copyright law.

Visit our website: http://rutgerspress.rutgers.edu

Manufactured in the United States of America

For my wife, Neimah, who has been my joy, my partner, and my rock

Contents

Foreword

Deborah T. Poritz

Introduction

Paul L. Tractenberg

Chapter 1. Henningsen v. Bloomfield Motors, Inc. (1960): Promoting Product Safety by Protecting Consumers of Defective Goods

Jay M. Feinman and Caitlin Edwards

Chapter 2. Marini v. Ireland (1970): Protecting Low-Income Renters by Judicial Shock Therapy

Richard H. Chused

Chapter 3. Southern Burlington County NAACP v. Township of Mount Laurel (1975): Establishing a Right to Affordable Housing Throughout the State by Confronting the Inequality Demon

Robert C. Holmes

Chapter 4. In Re Karen Ann Quinlan (1976): Establishing a Patient’s Right to Die in Dignity

Robert S. Olick and Paul W. Armstrong

Chapter 5. Right to Choose v. Byrne (1982): Establishing a State Constitutional Right to Publicly Funded Abortions

Louis Raveson

Chapter 6. State v. Hunt (1982): Protecting Privacy from Unwarranted Searches amid a National Road Map to Independent State Constitutional Rights Cases

Robert F. Williams

Chapter 7. In the Matter of Baby M (1988): Reining in Surrogate Parenting and Defining Children’s Best Interests

Suzanne A. Kim

Chapter 8. Lehmann v. Toys ‘R’ Us (1993): Protecting Employees from Sexual Harassment and a Hostile Work Environment

Fredric J. Gross

Chapter 9. Doe v. Poritz and Megan’s Law (1995): The Subtle Art of Judicial Deference to the Legislature

Ronald K. Chen

Chapter 10. New Jersey’s School Funding Litigation, Robinson v. Cahill and Abbott v. Burke (2011): The Epitome of the State Supreme Court as an Independent, Progressive Voice in Guaranteeing Constitutional Rights

Paul L. Tractenberg

Conclusion: New Jersey’s 1947 Constitution and the Creation of a Modern State Supreme Court

John B. Wefing

Notes on Contributors

Foreword

Deborah T.Poritz

This book and each of its chapters tell a fascinating and important story, a story about the origins of New Jersey’s modern judiciary, about the framework within which the state’s highest court functions, and about the cases that stand as examples of the court’s finest work. It is a story of an independent court system and the search for justice as the peculiar and specific charge of the judicial branch within a framework of three powerful, coequal branches of government.

In New Jersey’s 1947 Constitution and the Creation of a Modern State Supreme Court, the concluding chapter by John B. Wefing, we learn about the unique history of this court system, born in the constitution of 1947 and lauded as a model for efficient court administration by those who study courts and those who run them. In 1947, the year the judicial article of the constitution became effective, New Jersey moved from an antiquated complex of overlapping courts mired in jurisdictional disputes, possibly the worst system in the country, to a unified and streamlined judiciary administered by an independent chief justice acting in partnership with the other members of the state’s supreme court through the exercise of the court’s rule-making authority.

The new system was revolutionary when it was approved; it has remained independent and strong into the twenty-first century. And that independence and strength have provided the basis for the New Jersey Supreme Court’s preeminence among its peers over these past sixty-five years. During the period encompassed by the cases discussed in this book (from 1960 to 2011), the court was known for its careful and scholarly exploration of the issues before it and for its willingness to adapt traditional legal principles to reflect changing social attitudes and the complexities of modern life, including the enormous technological revolution that so altered the world the justices once knew. I have previously characterized the court’s approach in such cases, [W]hen the law is not clear or the facts do not fit the legal paradigm or recent legislative enactments reflect changed attitudes or norms, then the court must mine deeply and creatively for the principles that sustain its work. That experience affects the members of the court profoundly; it alters their understanding of the world around them and forces them to consider anew the values that shape the law.¹

As is well known, courts are constrained in respect to the issues they can or must, or cannot, entertain. A legislature may require convicted sex offenders to register with the police on release from prison, or a legislature may duck a politically difficult issue, but a court cannot decline to decide a case properly before it, or take the initiative in any matter it chooses. Only when litigants bring such questions to the courts and, in New Jersey, only when those issues arise out of a genuine case or controversy, can the court issue an opinion. Yet, in New Jersey and elsewhere, controversial and unpopular issues do come to the states’ highest courts and, when they do, the courts decide them.

Often, then, the New Jersey Supreme Court is asked to decide issues that are controversial, that sit at the outer edge of what we know, and that do not fit the legal paradigm so useful in other cases. Then, the court will look for analogies in existing law, for precedents and legal rules that may shed some light on the difficult questions before it, for indications of social attitudes and new understandings—and will answer those questions as best it can. On occasion, the court’s critics will claim that activist justices have intruded on the prerogatives of the other branches of government. Those who object to particular decisions of the court will raise concerns about the court’s role in our tripartite form of government and question the legitimacy of those rulings.

This book allows us to examine a series of seminal cases decided by the court so that we can determine for ourselves whether the court has overstepped its bounds. Each of the cases discussed here tells a story about the people before the court and about the problems that brought them there, but each case also tells us something about how the court works, how it comes to grips with seemingly intractable problems, and how it advances the argument for the policy decisions it makes in support of constitutional and common law values. So, for example, we learn in chapter 4 that Chief Justice Richard J. Hughes, writing the court’s groundbreaking decision in In re Karen Ann Quinlan, determined that the right of privacy under the New Jersey state constitution encompasses the right to refuse life sustaining treatment in circumstances where technological advances permit machines to keep patients alive who, on their own, would not survive.² We also learn that courts across the country followed the chief justice’s reasoning and "embraced the core principles of Quinlan to establish rights, processes and boundaries for decisions near the end of life.³ This was a modern problem and the court, using principles derived from earlier cases, balanced the state’s interest in preserving life against principles of personal autonomy and the voice" of the patient to develop processes that would protect the patient and respect her wishes whenever possible.

In chapter 6 on State v. Hunt, we come to understand the concerns that are raised when a state court of last resort relies on its state constitution to provide more expansive rights than those provided under the federal Constitution, even when the language of the two constitutions is similar. We observe various members of the court grappling with the standards that should be applied to guide judges when they are deciding whether the state constitution should be interpreted differently from its federal counterpart and we understand that a dialogue on the principles for state constitutional decision making has begun.

Or we read in chapter 1 about the court’s decision in Henningsen v. Bloomfield Motors and we see how the justices reshape the common law to meet changing circumstances in the marketplace to protect consumers who have little bargaining power. We discover that a wave of consumer protection legislation followed Henningsen, placing the responsibility for the harms caused by manufacturers’ products on the manufacturers themselves.

Each chapter provides insights into the court’s approach and into how the court reached its decision. When the court holds that the state’s funding for urban school districts does not comply with the state constitutional mandate, we observe in chapter 10 the tension between the court and the legislature as, in case after case over a period of nearly forty years, the court first accepts legislative action and later rejects the state’s implementation as inadequate. It is a tension that may be inevitable when the court requires legislative action to implement constitutional values.

Each chapter deals with a seminal decision of the court. Whether or not readers agree with the results in each case, they will develop an understanding not only of how the court does its work but also about the law, and about how, in a variety of contexts and when the system is at its best, the law expands and develops to meet new challenges.

Notes

1. Deborah T. Poritz, The New Jersey Supreme Court: A Leadership Court in Individual Rights, Rutgers Law Review 60 (2008): 708.

2. See chapter 4, "In Re Karen Ann Quinlan (1976): Establishing a Patient’s Right to Die in Dignity," xx.

3. Ibid.

Introduction

Paul L. Tractenberg

The New Jersey Supreme Court is consistently ranked as one of the leading state supreme courts in the United States.¹ A critical assessment of American courts in the early 1990s said that it appears on every list of innovative or prestigious courts.² By 2000, when the California courts fell from the short list of top state court systems, one writer urged them to model . . . the Garden [State] in its courts’ commitment to activist decisions.³

This high regard was not always the case. Until 1947, when New Jersey adopted its pathbreaking state constitution, the state’s court system was bulky and antiquated, hardly a model of independence and activism. One commentator described the shift from old to new constitution as an exchange [of] America’s worst court system for America’s best as New Jersey goes to the head of the class.⁴

In celebrating the 1947 constitution’s fiftieth anniversary, prominent New Jersey legal scholars joined in the accolades. They praised the state courts for addressing urgent public needs left unattended by the other branches and enumerated the factors that enabled the courts to be so independent and activist.⁵

By focusing on ten decisions the New Jersey Supreme Court rendered in a variety of fields over a period of more than fifty years starting in 1960 and ending in 2011, this book tells the story of how the court has exercised its widely touted independence and activism. These decisions shook the nation as well as the state of New Jersey. They provide dramatic support for those who laud the court.

Perhaps these decisions also provide support for those who decry what they see as the court’s overreaching and intrusion into the functions of the other governmental branches. That debate in New Jersey mirrors a broad national debate about the proper role of courts. Should they be activist, adapting the law to meet new and evolving circumstances, or should they be limited to strict construction of constitutional and statutory provisions that date back decades or centuries? Should the judiciary absolutely defer to decisions of the elected branches of government or should it be, in the words of the New Jersey Supreme Court, the designated last-resort guarantor of the Constitution’s command?⁶

Selecting ten decisions of the New Jersey Supreme Court since 1947, out of the thousands it has issued, to tell that story and illuminate that debate was a formidable challenge. The process actually began in 1999, long before this book was even a twinkle in anyone’s eye. Anticipating the new millennium, the New Jersey Lawyer, a publication of the state bar association, surveyed New Jersey judges and lawyers about the most important decisions of the twentieth century by New Jersey state courts and by federal courts and published the results.

The top state cases, in the order selected, were the tandem of Robinson v. Cahill and Abbott v. Burke, Mount Laurel, Henningsen v. Bloomfield Motors, In re Karen Ann Quinlan, and Lepis v. Lepis.

Love or hate the results of these cases, they and many other decisions by the modern New Jersey Supreme Court have had a profound effect not only on New Jersey but also on the rest of the nation and even, in some cases, on the world.⁷ They tend to be, in the vernacular of some, liberal or activist decisions. That means they tend to find for the less powerful and influential against the more powerful and influential, for the public good against private interests.

In Robinson/Abbott, the beneficiaries of the court’s decisions over four decades were millions of poor and minority students living in depressed urban areas. In Mount Laurel, the beneficiaries were those excluded from meaningful access to affordable housing in many parts of New Jersey by municipalities’ exclusionary zoning practices. In Henningsen, those who benefited had been severely injured by defective automobiles where the precise cause of the defects could not be proven. In Quinlan, it was parents who wanted their daughter to die in dignity rather than be kept alive indefinitely by artificial means. In Lepis, it was a divorced wife who sought to reopen an alimony award based on substantially changed circumstances.

My long and deep involvement with the New Jersey Supreme Court in Robinson/Abbott and other educational cases, coupled with my expanded view of the court’s pathbreaking work, led me to the idea of a book about the court’s most important modern (post-1947) decisions. I started with the New Jersey Lawyer’s list of the five most important twentieth-century decisions and then decided to expand the list to ten. That made the selection of the cases to be included much more complicated. With the aid of several talented and diligent law student research assistants,⁸ I developed a wide range of criteria for determining how influential decisions of the New Jersey Supreme Court were not only in New Jersey but also in the rest of the nation. Among these criteria was the frequency with which the cases were cited by other courts, in legal casebooks, in law review articles, and in the general press. With input from distinguished members of the bench, the bar, and the legal academy, I was able to identify dozens of important decisions that were considered candidates for inclusion to which the criteria were systematically applied. Finally, there were more qualitative judgments, including whether the cases lent themselves to interesting stories and whether, as a collection, they covered a wide variety of subject matter areas. Ultimately, the choice was mine and, although there were some close calls, I stand behind them.

The result was that I settled on four of the five New Jersey Lawyer decisions (Lepis was excluded because its impact, while substantial, was primarily limited to matrimonial lawyers) and six others: Marini v. Ireland, State v. Hunt, Right to Choose v. Byrne, In the Matter of Baby M, Lehmann v. Toys ‘R’ Us, and Doe v. Poritz.

From the start, my concept of the book was that each author should write a chapter telling the story of the case in a way and from a perspective that he or she preferred. I never sought to impose a uniform structure, style, or approach. Rather, I wanted ten flowers to bloom. All I asked of the authors was that they produce relatively brief chapters, with a modest number of endnotes, written in a way that would be accessible to a general readership. Despite the fact that law professors predominate, and that the authors who were directly involved in litigating the cases tended to write chapters delving into the cases in greater technical detail, I believe they did so brilliantly, but you, the readers, will be the ultimate judges of that.

Closing the circle is the book’s concluding chapter. It tells the tale, in much greater detail than this introduction, of New Jersey’s 1947 constitution, the potential it created for judicial independence and national leadership, and the chief justices of the New Jersey Supreme Court who led the way to the realization of that potential. The stories of the ten cases that come in between add the illustrative flesh and blood. These cases are presented in chronological order based on when the New Jersey Supreme Court rendered its most significant doctrinal decision or, in the case of Abbott v. Burke, its most recent decision.

The period since the 1947 constitution became a reality has been a remarkable six and a half decades, and the ten cases span five and a half of those decades. But, as some of the chapters suggest, the political climate of 2012 has raised questions about whether the court will be able to continue on that long and strong path. Beyond that, not all the chapters sing the praises of the court in unqualified terms. Some recognize that the New Jersey Supreme Court’s push into relatively uncharted waters, perhaps inspired by a social as well as a legal vision, came at the expense of doctrinal purity. And, in some cases, for political reasons, the court stopped short of directly confronting the underlying problem, especially as it might relate to race.

Notes

1. John B. Wefing, The New Jersey Supreme Court 1948–1998: Fifty Years of Independence and Activism, Rutgers Law Journal 29 (1998): 701; see also Leigh B. Bienen, A Good Murder, Fordham Urban Law Journal 20 (1993): 590 ([T]he New Jersey Supreme Court has had a history of being a leader in the development of state constitutional doctrine).

2. John B. Gates and Charles A. Johnson, The American Courts, A Critical Assessment (Washington, DC: CQ Press, 1991), 111.

3. Kevin M. Mulcahy, Modeling the Garden: How New Jersey Built the Most Progressive State Supreme Court and What California Can Learn, Santa Clara Law Review 40 (2000): 863 (outlining New Jersey’s activists decisions on criminal procedure, right to refuse medical treatment, sexual assault/rape standard, and education reform).

4. Glenn R. Winters, New Jersey Goes to the Head of the Class, Journal of the American Judicature Society 31 (1948): 131.

5. Jack Sabbatino, Assertion and Self-Restraint: The Exercise of Governmental Powers Distributed Under the 1947 New Jersey Constitution, Rutgers Law Journal 29 (1998): 800; Wefing, The New Jersey Supreme Court 1948–1998, 710; see also Brendan T. Byrne, The Role of the Judiciary in the Modern Institutional State, Seton Hall Law Review 11 (1980): 653; Worrall F. Mountain, Role of Judicial Activism, Seton Hall Law Review 10 (1979): 6; Robinson v. Cahill: A Case Study in Judicial Self-Legitimization, Rutgers Law Journal 8 (1977): 508.

6. Robinson v. Cahill, 69 N.J. 133, 154 (1975).

7. Although this book’s focus is on decisions by the modern New Jersey Supreme Court created by the 1947 state constitution, it is interesting, perhaps even prophetic, that in 1780 the New Jersey Supreme Court (not then the state’s highest court) rendered what was ostensibly the first judicial decision in the newly formed United States striking down a legislative enactment. The decision preceded by twenty-three years the United States Supreme Court’s landmark decision in Marbury v. Madison to the same effect. For more on the fascinating history and importance of Holmes v. Walton, see Bernard Schwartz, A History of the Supreme Court (New York: Oxford University Press, 1995), 7; Austin Scott, Holmes v. Walton: The New Jersey Precedent, American History Review 4 (1899): 456; and Paul Axel-Lute, Holmes v. Walton: Case File Transcriptions and Other Materials, New Jersey Digital Legal Library (October 2009), http://njlegallib.rutgers.edu/hw/. Special thanks are due Paul Axel-Lute, collection development librarian of the Rutgers School of Law–Newark law library, for bringing this case and the materials about it to my attention, and for writing a substantial paper on the subject.

8. I owe a great debt of gratitude to Danielle Weslock, Sarah Koloski, Guillermo Artiles, and Tarik Shah for their exemplary research and editorial assistance while they were students at, and, in one case, a recent graduate of, Rutgers School of Law–Newark.

1

Henningsen v. Bloomfield Motors, Inc. (1960)

Promoting Product Safety by Protecting Consumers of Defective Goods

Jay M. Feinman and Caitlin Edwards

Ford Motor Company announced the culmination of the largest series of recalls in its history in October 2009: sixteen million cars, trucks, and minivans contained a faulty switch that created a risk of fire even when the vehicle was turned off. The toy in a McDonald’s Happy Meal contains no dangerous lead paint, and the box warns parents that the toy contains small parts and is unsuitable for children under three years of age.

Safety recalls, child-safe toys, and other consumer protections are taken for granted today, but there was a time not so long ago when everyday products were dangerous and consumers who were injured by cars, toys, or other products faced a difficult road to recover compensation from manufacturers. About fifty years ago all of this changed, drastically and in a short period of time. The catalyst for this dramatic change was an unlikely source—a woman from Keansburg, New Jersey, who was injured when her new Plymouth sedan suddenly veered into a brick wall. When she initially sued the dealer who had sold her the car and Chrysler, the manufacturer, the state of the law posed roadblocks to her recovery. The New Jersey Supreme Court recognized that change was needed and issued an opinion that quickly would change the world of products liability and consumer protection.

The Case

On May 7, 1955, Helen Henningsen was very happy and running around like a madwoman.¹ She and her husband, Claus, had gone from their home in Keansburg to nearby Bloomfield Motors, a Chrysler and DeSoto dealership, to buy a car that would be her Mother’s Day present from Claus; it would be the first new car they had owned in seventeen years of marriage. Claus signed a contract for a Plymouth Club Sedan and put down a $1,000 deposit. (In a sign of the times, even though it was to be Helen’s car, the couple always put major purchases in Claus’s name.) The next day the dealer prepared the car for delivery, and they picked up their new car on May 9.

Over the next week Helen only used the car a couple of times to go to the store and around town. On May 19, she drove to Asbury Park. While driving home on Route 36 at about twenty miles per hour, she suddenly heard a terribly loud noise . . . as if something cracked under the hood; the steering wheel spun out of her hands, and the car veered sharply to the right and crashed into a highway sign and a brick wall.² The impact threw Helen’s face into the steering wheel, knocking loose her teeth so they all had to be pulled out. The crash also broke five of her ribs and injured her left knee and ankle, requiring emergency treatment, two subsequent hospitalizations, and surgery to her left kneecap.

Breck Jones, the insurance appraiser who inspected the damaged vehicle, could not pin down the exact cause of the accident but concluded there must have been a mechanical defect, something wrong from the steering wheel down to the front wheels.³

The Henningsens sued Bloomfield Motors and Chrysler Corporation, Helen for her injuries and Claus for damage to the car, the medical expenses he paid, and the loss of Helen’s society and services. Their legal theories were that Bloomfield and Chrysler were negligent in manufacturing or preparing the car and that they had made express or implied warranties—promises about the quality of the car. However, because of the state of the law in the late 1950s, in New Jersey and across the United States, the Henningsens faced some formidable obstacles.

First, they could not point to how Bloomfield or Chrysler had been negligent, or even what the defect in the car was. The Henningsens’ lawyer argued that the Plymouth was new, the road where the accident occurred was smooth, Helen was not at fault, and Jones had acknowledged that something had gone wrong with the car. From this, the jury could infer that the accident must have been caused by a defect in the car’s steering. But Chrysler and Bloomfield each pointed out that there was no proof that they had been negligent. Chrysler argued that the Henningsens had not demonstrated that Chrysler failed to use reasonable care in making the car. Bloomfield argued in turn that it had done nothing to the car other than the ordinary preparation for delivery. As Samuel Weitzman, Bloomfield’s lawyer, put it, We do not know what we should have done that they say we didn’t do, and we do not know whether we didn’t do something that we should have done. That is normally the definition of negligence.⁴ The lack of proof was fatal to the negligence claim. Chrysler pointed out that in each of the precedents cited by the Henningsens’ lawyer, there had been stronger, often direct, evidence of negligence.

Second, the sale of the car was accompanied by several warranties of quality, expressly made and implied by law, such as the warranty of merchantability—a promise that the car would perform the way cars normally should, including not suddenly veering off the road. But, in enforcing the warranties, the Henningsens faced yet another problem. Helen was injured in the Plymouth that Claus bought from Bloomfield who bought it from Chrysler. Could she enforce a warranty when she was not the purchaser? If so, who made what warranty, Bloomfield or Chrysler?

Under existing law, Helen’s suit would be blocked by what Benjamin Cardozo, legendary chief judge of the New York Court of Appeals and later associate justice of the United States Supreme Court, had described as the citadel of privity. Privity was a legal doctrine that barred claims for breach of warranty between persons who had not contracted with each other, just as Helen had not contracted with Bloomfield and neither she nor Claus had contracted with Chrysler. At the time, New Jersey decisions had ruled that warranty is the creature of contract and could only be asserted by one contracting party against another. Therefore, under settled law, Bloomfield argued that it had no legal obligation to Helen, and Chrysler argued that it had no obligation either to her or to Claus.

Third, even if Helen could sue to enforce the warranties, the sales documents that Claus had signed effectively forfeited their protections. Paragraph seven of the fine print on the back of the document stated that Chrysler guaranteed the car would be free from defects in material or workmanship. Chrysler’s responsibility in honoring that warranty, however, required it only to replace defective parts at the factory within the first ninety days or four thousand miles of ownership. Most importantly, it stated, It is expressly agreed that there are no warranties, express or implied, made by either the dealer or the manufacturer except for the ninety-day replacement warranty.

Claus had read the front page of the contract, but not the fine print on the back. Under the law, his ignorance of the fine print did not matter; having signed it, he was presumed to have agreed to all its terms. Therefore, the argument went, neither Chrysler nor Bloomfield owed any further obligation to the Henningsens.

When the case came to trial, many people testified: Claus; Helen; Harold Roman, Bloomfield’s president; police officers and witnesses to the accident; one of Helen’s doctors and other witnesses from the hospital where she was treated; and Breck Jones, the Henningsens’ expert about the purchase of the car, the accident, and Helen’s injuries. The trial judge agreed with Chrysler and Bloomfield that the negligence claim could not stand under existing law, and he dismissed it.

The warranty claims were a different story. When the judge instructed the jury on the law, he presented the steps by which it could surmount the privity barrier and the contract’s disclaimer of warranty. Although he left the final decision to the jurors, he strongly suggested what their conclusion should be. As to the existence of a warranty, he said:

When the defendant Chrysler Corporation manufactured the Plymouth car which the plaintiffs bought, it would be for you to say whether or not there was an implied warranty. . . . In fact, that is what they warranted. When they made the car, they said, that car is reasonably suited for ordinary use.

When the Bloomfield Motors . . . displayed the automobile for sale to the plaintiffs and sold it to them, that defendant also warranted that the automobile was reasonably suited for ordinary use.⁵

The warranty also would extend to Helen even though she was not the purchaser, because the car was purchased for her use. And the disclaimer would not bar the claim because, under the trial judge’s novel theory, a disclaimer would not be effective unless its inclusion in the contract was fairly procured or obtained.⁶

The jury found in favor of Helen and Claus and against both defendants, awarding Helen $26,000 and Claus $4,000 in damages. The defendants appealed to the appellate division, New Jersey’s intermediate appeals court, complaining that the trial judge had erred on the warranty and other issues. Ordinarily, the case would be briefed and argued before a three-judge panel of the appellate division, the panel would decide the case, and, if the loser appealed further, the supreme court would decide whether to hear the case. Not here. The New Jersey Supreme Court, recognizing the importance of the issue, used its authority to reach down and take the case away from the appellate division and hear it right away.

The Arguments

Each of the parties began by submitting briefs—written arguments—to the court. The Henningsens went first, represented by Carmen Rusignola of Newark, aided by lawyers from the Hoboken firm of Baker, Garber & Chazen.⁷ The negligence claim had been dismissed by the trial court, so the focus was on the warranty claims. Despite prevailing in the trial court, the plaintiffs faced the same obstacles as before. Existing law was against them on the extension of the warranty from Chrysler, through Bloomfield, to Claus and from the actual purchaser, Claus, to the injured party, Helen. They also had to confront the issue of effectiveness of the disclaimer in barring any claim.

To overcome these problems, they tried two approaches. First, they attempted either to distinguish the Henningsens’ case from prior unfavorable decisions or to reinterpret prior decisions so they supported the Henningsens’ position. This approach was untenable, though, and the defendants exposed it in their briefs, pointing out that the prior cases just did not say what the plaintiffs argued they did.

The second approach was more successful, however, and the court ultimately adopted it; the Henningsens’ lawyers shifted ground. The case should be decided, they argued, not by drawing on precedents from dusty law books but by responding to the needs of the times. Accordingly, the lawyers placed as much emphasis on the work of legal scholars as on prior cases.

Most significant were citations to the two major tort law treatises of the times. William L. Prosser’s text had predicted, enthusiastically if prematurely, that strict liability for defective products would be the law of the future.⁸ Fleming James viewed the primary function of tort law to be social insurance, providing compensation for the victims of accidents by spreading the losses to manufacturers and society at large.⁹ The scholars’ theories provided the Henningsens’ lawyers with authority to present to the court in support of their suggestion that the court reshape the law.

As to the making of the warranty, the Henningsens’ brief argued that the dealer and the manufacturer were an economic unit as far as the public was concerned. The warranty extended to Helen because the car was really bought jointly in all but name; even more telling, the plaintiffs’ lawyers encouraged the court to consider the broader legal problems involved in warranty cases rather than decide the issue on the narrower factual matters in the record, so any user of a product would benefit from an implied warranty.¹⁰

The same approach dictated that the disclaimer of warranty was invalid:

Anyone who has had the experience of purchasing a new car knows that the average purchaser, in the excitement generated by such a substantial purchase, does not look for the fine print on the back of the sheet. . . . If the manufacturer and dealer do not stand fully and completely behind the safety of their highly advertised product they