The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell
Goldberg, John C. P., Zipursky, Benjamin C., Harvard Law Review
At least since World War II, tort law has played a more prominent role in the U.S. legal system than in those of other industrialized nations. (1) The emergence in the 1960s and 1970s of the doctrine of strict products liability was in many ways emblematic of this distinctiveness. The new regime was introduced not by legislatures, but by courts. (2) The rationales on which those courts relied were more instrumental than doctrinal. (3) And the rules they fashioned conferred on judges and jurors broad discretion to impose new responsibilities on commercial product sellers. In these respects, the products liability revolution had an 'only-in-America' flavor to it.
A mere half-century later, American law is perhaps becoming distinctive for its hostility to the idea that consumers should have the right to obtain redress against manufacturers who have injured them through the sale of defective products. Products liability law has been the subject of sustained attacks. Advocates for business and professionals have insisted that it is a drag on innovation, quality, and competitiveness. (4) Libertarians have complained that its mandatory obligations prevent citizens from trading cost for safety. (5) A coordinated public relations campaign has helped convince many Americans that it is primarily a means by which the foolish and the feckless foist responsibility onto others. (6) Even among those unpersuaded by these criticisms, many are prone to dismiss products liability law as second-rate regulation or insurance--a clumsy governance structure left over from pre-modern times. (7)
Products liability law still has important proponents of various stripes, and the criticisms of it (and of tort law more generally) have not gone unanswered. (8) But the critics--aided by a succession of presidential administrations overtly hostile to tort law, a corresponding shift in the temperament of the judiciary, and ongoing economic insecurity--have been winning the day. Across the country, state courts have (perhaps justifiably) pulled back from liability-expanding decisions such as Barker v. Lull Engineering Co., (9) Sindell v. Abbott Laboratories, (10) and Beshada v. Johns-Mansville Products Corp. (11) Many state legislatures have imposed general limitations on liability (for example, several-only liability), and some have established regulatory compliance defenses for manufacturers while also partially immunizing retailers from liability for product-related injuries. (12) The U.S. Supreme Court has been quite willing to invoke its authority to interpret federal statutes and the Constitution as a means of untying itself from Erie's mast so as to limit the reach of state products liability law. (13)
With the election of a President who has not shown open antipathy for the tort system, one might expect this tide to turn. In some respects it has. (14) However, the political situation at the federal level may be more receptive to products liability reform than might be supposed. Tort law is appropriately low on the list of this Administration's priorities. To the extent it garners attention, it may not fare well in times of economic crisis, particularly insofar as the White House is imbued with a technocratic outlook that favors expert agencies and systemic solutions over a system of one-off adjudications. Certainly it is conceivable that the present Administration might be tempted to use tort reform as a bargaining chip in its negotiations with political adversaries. (15)
Now into this mix comes an article in the Harvard Law Review titled The Uneasy Case for Product Liability, authored by Professors A. Mitchell Polinsky and Steven Shavell. (16) The article is not an advocacy piece, nor even a white paper charting a program of law reform. It is instead a brief survey of prior analyses of benefits delivered by, and costs associated with, the application of tort law to injuries caused by widely sold products. Based on that survey, it offers a preliminary assessment of whether tort law, thus applied, is net beneficial to society. While measured in tone, Uneasy generates a surprising and stark conclusion: that it is probably desirable for manufacturers not to be subject to any tort liability for injuries caused to consumers by widely sold products. (17) Given its message, as well as its timing and placement and the prominence of its authors, Uneasy might be the rare article that escapes the fate of obscurity that awaits most academic legal scholarship.
Unfortunately, Uneasy cannot sustain the burden it has set for itself. The evidence it marshals is surprisingly scant, consisting of anecdotes about products that suffered declining sales after being linked to certain injuries, observations about consumers' improved access to safety information, a brief review of inconclusive studies of whether a rule of strict liability better deters the sale of unsafe products than a negligence rule, reminders of the high costs of civil litigation, and a smattering of microeconomic theory. These observations are nowhere near sufficient. In essence, Uneasy argues for the elimination of an entire body of law based on the absence of social scientific evidence of a certain sort demonstrating the significance of its contribution to the goals of deterrence and compensation. For anyone prepared to credit criticism on these terms, there is much more to be uneasy about than a branch of tort law: it is doubtful that any body of law measures up to these peculiar standards.
In purporting to demonstrate the absence of a case for the imposition of liability on sellers for injuries caused by defective products, Uneasy also vests inexplicable confidence in market incentives and a regulatory system with failings that are exasperating to critics across the political spectrum. Its apparent satisfaction with the level of first-party health insurance enjoyed by injury victims today is no less puzzling. And strikingly missing from the entire picture is any mention of the basic principle that a person wrongfully injured by the sale of a dangerous product should be able to hold the manufacturer accountable for her injuries. When one begins with a more realistic view of what products liability law really is, what place it holds within our political system, and what values it stands to serve, one quickly comes to appreciate that the basic case for products liability law is actually quite easy.
In criticizing Uneasy both on its own terms and more generally, we do not mean to deny