Thursday, December 18, 2008
Lars Noah on Duty of Product Stewardship
Professor Lars Noah (Florida; picture left) has posted on SSRN his article, Platitudes About 'Product Stewardship' in Torts: Continuing Drug Research and Education, Mich. Telecomm. & Tech. L. Rev. (forthcoming 2009). (H/t Torts Prof & Solum/Legal Theory.) Here's the abstract:
This paper focuses on one emerging aspect of tort litigation against pharmaceutical manufacturers that, if it gained traction, portends a dramatic (and potentially counterproductive) expansion in the prescription drug industry's exposure to liability. A growing chorus of commentators would impose on pharmaceutical manufacturers a broader duty to test and educate (aspects of what they call an obligation of "product stewardship" or "informed choice"). This paper explains the serious flaws in such proposals, but it also suggests one novel basis for imposing liability (distribution restrictions) that might make some sense. Genuine product stewardship, at least if understood as an effort to make the most of a scarce resource, strikes me as far more defensible than the approaches suggested by other commentators.