Abstract

In The Uneasy Case for Product Liability, we maintained that the benefits of product liability are likely to be less than its costs for many products, especially widely sold ones. Our article was intended to alter the dominant view held by the judiciary and commentators that product liability has a clear justification on grounds of public policy. We argued instead that a skeptical attitude toward product liability should be adopted. Professors John Goldberg and Benjamin Zipursky strongly criticize our article in The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell. To a significant extent, however, they attack a straw man, for they impute to us a radical thesis – that product liability should be eliminated for all widely sold products – that we manifestly did not advance. In fact, we argued that whether product liability is undesirable depends on the particular product. Goldberg and Zipursky also ascribe to us other opinions that exaggerate what we said in our article – notably, they state that we believe that product liability has no beneficial effect on product safety for widely sold products. It is not surprising, therefore, that they are unable to support these mischaracterizations with citations to statements in our article. The major claim that Goldberg and Zipursky develop is that our benefit-cost analysis fails to demonstrate that the case for product liability is uneasy. In our view, their critique is deficient on multiple accounts, including that it contains numerous distortions and errors, and hence does not alter our original conclusion.

Highlights

  • The Harvard community has made this article openly available

  • We argued in our article that market forces and regulation often contribute in a significant way to product safety, for widely sold products, and that the safety benefit of product liability might not be great

  • Goldberg and Zipursky do not dispute our basic observation that the safety benefit of product liability is incremental in nature; they do not deny that market forces and regulation are often important determinants of product safety

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Summary

Mitchell Polinsky and Steven Shavell

In The Uneasy Case for Product Liability,[1] we maintained that the benefits of product liability are likely to be less than its costs for many products, especially widely sold ones. Professors John Goldberg and Benjamin Zipursky strongly criticize our article in The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell.[2] To a significant extent, they attack a straw man, for they impute to us a radical thesis — that product liability should be eliminated for all widely sold products3 — that we manifestly did not advance. Mitchell Polinsky & Steven Shavell, The Uneasy Case for Product Liability, 123 HARV. The major claim that Goldberg and Zipursky develop is that our benefit-cost analysis fails to demonstrate that the case for product liability is uneasy.[7] In our view, their critique is deficient on multiple accounts, including that it contains numerous distortions and errors, and does not alter our original conclusion

A SKEPTICAL ATTITUDE
THE SAFETY BENEFIT OF PRODUCT LIABILITY
Should We Have Taken the Present Level of Regulation as Given?
Our Qualitative Discussion of the Safety Benefit of Product Liability
Empirical Studies of the Effect of Product Liability on Product Safety
THE COMPENSATION BENEFIT OF PRODUCT LIABILITY
The Incremental Nature of the Compensation Benefit
Nonmonetary Awards and the Compensation Benefit
Findings
THE BENEFIT-COST EVALUATION OF PRODUCT LIABILITY
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