Product Liability Law — RIP

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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14 Responses

  1. shg says:

    I bet you meant to write “en garde.”

  2. Gerard Magliocca says:

    Indeed I did. Fixed now.

  3. Howard Wasserman says:

    As to # 3, they have floundered because of congressional involvement to alter the underlying law.

  4. Dave Hoffman says:

    Or, contra howard, because the theories threatened to destroy industries of importance to the economy while benefiting mostly lawyers and windfall plaintiffs?

  5. Howard Wasserman says:

    Not sure that’s contra my point as much as the underlying explanation/cause for my point (and I agree with Dave that this is the explanation).

  6. dave hoffman says:

    Howard – sorry to misunderstand. In PA, I think it wasn’t so much congressional meddling as legislative action (as well as elected judges thinking twice) that killed our gun-litigation-industry. Could be wrong, though, as I didn’t follow closely…

  7. 0. Yes, you are right, product liability is a field of advanced torts, and as such, much of its teaching value consists in applying tort-law concepts of proof, causation, etc. in a factually rich and concrete setting.

    1. Just because federal statutes are preempting state common-law causes of action doesn’t mean there isn’t law there. It comes under different headings, but it’s still there.

    2. The “negligence” inquiry isn’t. For example, the courts have more or less refused to make determinations that entire classes of products (e.g. above-ground swimming pools) are unsafe as a matter of law, even when the Hand formula suggests that they are.

    3. So nu? The big society-reshaping uses of products liability much beloved of law professors have failed, but that doesn’t mean that the field has vanished.

  8. Brett Bellmore says:

    3. Yes, and thank goodness.

  9. A relevant paper (and timely, at least for this discussion): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117245

  10. From the conclusion to the above paper paper by Keith N. Hylton:

    “In contrast to the skepticism expressed in prominent economic treatments of the topic, I have argued that products liability law probably enhances social welfare. The core doctrines that have evolved appear to be optimal in light of the problems of uncertainty in the application of legal tests in this area. There appears to be no case for wholesale revision or reversal of course. Courts should focus on the specific pockets of doctrine, such as preemption, that generate uncertainty and instability in the law.”

    This of course doesn’t speak to the question of whether or not this should be a separate course (I’m inclined to agree with James that it should be a part of the torts curriculum), but it does endorse James’ conclusion that the field hasn’t vanished and indeed, that products liability law remains relevant.

  11. A.J. Sutter says:

    I’m not a litigator, but perhaps there are certain distinctive features of product liability litigation, esp. trial practice, that might merit at least a seminar? After all, students interested in taking a PL course beyond their 1st-year Torts class probably are interested in the litigation angle. Maybe an Evidence course could be a prerequisite. The drawback, of course, is that this would require some faculty with actual trial experience.

  12. If the statement, “I’m sure that many product liability lawyers and scholars disagree that their field is dead,” is taken to imply or insinuate these lawyers and scholars are motivated mainly by “self-interest” (understood along the lines, say, of the crudest forms of rational-choice theory), I would recommend readers take a look at the chapter, “In Defense of Products Liability and Safety,” in Thomas H. Koenig and Michael L. Rustad, In Defense of Tort Law (New York University Press, 2001): 172-205.

    In fact, I would urge everyone to read this book, as it is useful for dispelling much nonsense and the principal myths in our society about tort law.

    And as to no.2 above:

    We should perhaps take note ALI’s replacement of Sec. 402A with the Restatement (Third) of Torts (1997): Product Liability, which “proposes a products liability analysis that is freed of doctrinal designations (negligence, warranty, strict tort liability) and instead evaluates claims ‘functionally,’ i.e., whether the claim alleges a (1) manufacturing defect; (2) design defect; or a (3) defect by reason of inadequate warnings or instructions.” It remains largely the case, however, that legal claims are pleaded in terms of negligence, strict liability, and breach of warranty.

  13. Kenneth Ross says:

    As someone who has devoted his career to product liability and taught product liability at two law schools for over 20 years, I disagree with the position of the poster. While it is true that product liability is not expanding as it did in the 60s, 70s and 80s, there are still thousands of cases being brought each year and these cases have a profound effect on manufacturers and consumers.

    More importantly, there has been an explosion in the enactment of regulatory laws around the world which create product liability and product safety requirements. In addition, the U.S. regulatory agencies have gotten more active.

    This results in much higher risk for manufacturers, especially those who sell internationally. They can be sued in various countries and be subject to civil penalties for failing to comply with regulatory requirements. The other result is a proliferation of recalls of products in the U.S. and the around the world that result in more litigation (PL, shareholder, and class action), bad publicity, huge financial problems, Congressional inquiries, etc.

    I will assure you that for manufacturers and practitioners, this is not a dead area of law.

    I teach the course with some international content and discuss how lawyers can help manufacturers make safe products that comply with the law and defend themselves. So I go well beyond the caselaw and doctrinal discussions. It makes the course practical and realistic and one that the students enjoy.

  14. AF says:

    I have no idea whether product liability is dead as a field of scholarship but it clearly isn’t dead as a field of practice, given that product liability cases continue to be common.

    In lumping product liability lawyers in with scholars as practicioners of a “dead” field, Professor Magliocca seems to be assuming that a field that no longer merits a separate law school class no longer exists as a practice area. That is a remarkable assumption and plainly incorrect.