Bad Blood: U.K. and U.S.A. - The Jurisprudence of Product Stewardship
George W. Conk
The idea is deeply entrenched in the minds of many that there is something wrong withmodern products liability law. Product liability law has been celebrated by some as “good for America” because it brings “discipline” to corporate America.
But for others it is a failure thathas damaged manufacturing efforts, and offered punishment where incentive is needed.
Theidea that there is something wrong with strict liability for products goes back a long way, and hasexcellent pedigree. Prof. Fleming James, Jr., the torts treatise author and early apostle of thestrict liability gospel,
urged in 1956 at a Torts Roundtable at an AALS
meeting that “strictliability is to be preferred over a system of liability based on fault wherever you have anenterprise or activity, beneficial to many, which takes a more or less inevitable accident toll of
Adjunct Professor, Fordham Law School; Elected member, American Law Institute; partner, Tulipan & Conk, P.C., South Orange, New Jersey.
3, 5 (2001). [“Productsliability is both the common law’s greatest advancement of the twentieth century and a subject of great controversy...The ballot box is not democracy’s only instrument. The people, after listening to evidence and reasoned arguments, work their will in the jury box as well. The tortsystem is a system of disciplined democracy...”]; Michael L. Rustad,
The Jurisprudence of Hope: Preserving Humanism in Tort Law
1099 (1994) [celebrating thelife and work of Prof. Thomas Lambert, who wrote “The blessing of
[v. Johns ManvilleProducts Co., 90 N.J. 191, 447 A.2d 539 (1982)] is surely a consecration of the aims and goals of strict liability to maximize consumer protection, serve as a spur to safety incentives, simplify the plaintiff's burden of proof in products litigation, and achieve a more equitable distribution of losses from product failure.”]
See, e.g., J
, 414-15 (1992) ("Together the ruleof strict liability in conjunction with the design defect tests have wreaked havoc within themanufacturing sector of the economy.... The modern solution has failed to provide what we seek,a principled, rational, and predictable body of law regulating product safety."); R
ULES FOR A
103 (1995) ("Breakthroughs in technology and treatment need carrots, not sticks.").
Harper & James, Law of Torts (1946)
Association of American Law Schools.1