When a party is allegedly harmed by the wrongdoing of another party, the courts are the proper domain for determinations to be made about compensation to be paid by the second party to the first party. If courts are focused on questions of wrongdoing, who is the wrongdoer, what are the damages, and how much should the wrongdoer pay to the other party, the courts are not likely to engage in worrisome supplantation of the legislature in formulating public policy and exercising the other legislative powers of taxation, spending, regulating and imposing costs of regulation, defining crimes and setting levels of punishment and fines for noncompliance with the criminal law or other regulations.
If courts lose their focus on wrongdoing, the opportunity arises for expansive supplantation of the legislative branch.
This has occurred and is increasingly occurring.
The doctrine of strict liability is a good starting point. Under strict liability, an activity or product may be considered inherently very dangerous, and the party engaging in the activity or making the product may be held liability for any injury that happens. In this situation, there is a manifestation and implementation of some public policy. The activity or product is not illegal, which represents a public policy determination that it has social utility and it should not be prohibited. Further, the court implements a policy decision that the cost of injuries that occur, which do not occur through any "wrongdoing," should be paid for by the party engaging in the dangerous activity or manufacturing the product.
Such policy may or may not be good policy. There can be pros and cons regarding the policy. The legislature could believe that the cons outweigh the pros and disagree with the policy. If the legislature disagrees with the strict liability rule, I contend that the legislature has the power to change the strict liability rule as it determines best. For example, if the courts held that cars were inherently dangerous, and that manufacturers were liable for all injuries from car accidents, I think the legislature, if it disagrees, properly has the power to pass a law saying strict liability shall not apply in the case of cars.
If the courts implement a policy regarding compensation where there is no wrongdoing, and the legislature agrees with the policy, the legislature need take no action, and the court implemented policy will stay in place as the public policy.
A fair observation could be, however, that the courts have run hogwild in adopting and implementing policy that imposes liability and supplants the legislature where there is no wrongdoing. I will have more to say about this later.
The plaintiffs lawyers, as usual, do not want to hear anything about this, because it could reduce litigation and payments in litigation.