Product Liability: Social Cohesion and Agency Relationships

Abstract

The other-regarding behavior of product sellers has been the object of intense scrutiny for over half a century, developing product liability law into a seemingly distinct branch of tort law. Yet the product liability “revolution” has come into focus over the last couple of decades, and it appears now to be different than it initially appeared. When we reexamine developments in product liability law through justificational lenses, we understand them in a new way. THE JUSTIFICATIONAL ERRORS My account of product liability law emphasizes its close relationship to the negligence concept. My account is therefore a major departure from most contemporary stories of product liability. It is generally thought, for example, that “products liability law” is a unique legal regime, self-contained and separated from the negligence regime applicable to other activities. A small industry has grown up advancing this position, producing product liability casebooks, treatises, and restatements, carefully justifying the regime's individual identity and content. Often the regime is thought of as “strict products liability,” although I demonstrate below that the term strict liability is largely a misnomer when applied to product liability law.