Election 2026: Wiley brings writer's approach to work on appellate bench

Justice John Shepard Wiley Jr., who faces a retention vote Nov. 3, has used his opinions on the 2nd District Court of Appeal to emphasize tort law's role in creating incentives to prevent harm.

A former UCLA law professor and 16-year Los Angeles County Superior Court judge, Wiley was appointed by Gov. Jerry Brown to Division 8 in 2018. Voters retained him in 2022 for the remainder of his predecessor's term.

Writing has long been central to his view of judging. "Judicial writing is, after all, utilitarian," Wiley wrote in the Los Angeles court's "Gavel to Gavel" in 2014. "All else equal, shorter is faster and better."

Wiley has likened appellate judging to adding a brick to a larger structure, with each published opinion contributing to a body of precedent that lawyers and judges can use in later cases.

That combination of legal writing and economic analysis is apparent in Loomis v. Amazon.com LLC, a 2021 case involving a hoverboard bought from a third-party seller on Amazon that caught fire.

"In large measure, tort law is cost-benefit analysis," Wiley wrote.

Wiley joined the court in reversing summary judgment for Amazon on products liability claims but wrote separately to explain the result through economic theory. Amazon's place in the distribution chain, he argued, allows it to learn of dangerous products, halt their sale and warn buyers. Holding Amazon liable, he reasoned, would give the company an incentive to use those capabilities to reduce accident costs.

Catherine M. Sharkey, a New York University School of Law professor, called the opinion "a trailblazing concurrence destined to enter the torts canon" in a 2023 Journal of Tort Law article. Sharkey described that focus on preventing harm as a recurring theme in Wiley's decisions on products liability, economic losses, institutional liability and punitive damages.

Wiley also applied a cost-benefit analysis to the duty to prevent harm in Jane IL Doe v. Brightstar Residential Inc., a 2022 opinion reversing summary judgment for a residential care facility and its owners after a disabled woman was sexually assaulted by a handyman.

"Because the burden of preventing this attack was relatively low while the benefit would have been great," he wrote, the defendants had a duty to contain the danger.

Wiley's opinions also reflect close attention to how evidence is presented at trial. In Brown v. Los Angeles Unified School District, a 2021 case brought by a former teacher who attributed physical symptoms to Wi-Fi exposure, Wiley agreed a reasonable-accommodation claim could proceed but wrote separately about how the trial court should evaluate the scientific evidence. He cautioned against partisan expert testimony and suggested the trial court consider appointing an independent expert under Evidence Code Section 730, an option he said lawyers rarely propose because it introduces "something powerful and beyond their control."

Wiley earned his law degree and a master's in economics from UC Berkeley and clerked for Judge Frank M. Coffin of the 1st U.S. Circuit Court of Appeals and U.S. Supreme Court Justice Lewis F. Powell Jr. He was a tenured professor at UCLA School of Law, publishing in the Harvard Law Review, Yale Law Journal and University of Chicago Law Review, and served as a federal prosecutor.

Gov. Gray Davis appointed Wiley to the Superior Court in 2002. After mental health and general civil assignments, he spent much of his tenure on complex litigation.

Wiley was elected in 2015 to the American Law Institute, an organization of judges, lawyers and scholars that produces Restatements of the Law and other projects aimed at clarifying and improving the law.