Thursday, January 30, 2014
Kyle Graham (Santa Clara) has posted to SSRN Strict Products Liability at 50: Four Histories. The abstract provides:
This article offers four different perspectives on the strict products-liability "revolution" that climaxed a half-century ago. One of these narratives relates the prevailing assessment of how this innovation coalesced and spread across the states. The three alternative histories introduced by this article both challenge and complement the standard account by viewing the shift toward strict products liability through "populist," "functionalist," and "contingent" lenses, respectively. The first of these narratives considers the contributions that plaintiffs and their counsel made toward this change in the law. The second focuses upon how certain types of once-common products cases forged a practical argument for strict products liability as a superior alternative to negligence. The third examines why tort law eclipsed warranty as the doctrinal forum for products-liability reform. This article concludes that these non-canonical accounts have been obscured due to patterns and biases that recur across descriptions of doctrinal development in tort law.