June 25, 2026 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: One Step Forward, Two Steps Back: How the New York Appellate Division Slowed the Progress of Judge Cardozo’s Effort in Macpherson v. Buick Motor Co. To End Privity’s Stranglehold Over Negligence Claims in Product Injury Cases
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as a “citadel” and presented MacPherson’s author, Judge Benjamin Nathan Cardozo, as a judicial superhero, leaping outdated law in a single bound: “Cardozo, wielding a mighty axe, burst over the ramparts, and buried the general rule under the exception.”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
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