Product Liability Law — RIP
I was talking to one of my colleagues recently about our school’s Product Liability course, and we both asked the same question–Is there any point in teaching that as a separate class anymore? Product liability law barely has a pulse these days. Why do I say that?
1. Federal statutes preempt state product liability law with increasing frequency (either because Congress drafts them that way or because the Supreme Court is inclined to read them that way).
2. There isn’t much that is distinctive about product liability law. In most cases, the inquiry into whether a product or a warning label is defective just reduces to the same old negligence inquiry (a cost/benefit assessment). We say that product liability is strict, but that rests on a conclusion that the product is defective or unreasonable.
3. Litigation to regulate particular goods through product liability (guns, fast food, etc.) have basically floundered.
I’m sure that many product liability lawyers and scholars disagree that their field is dead. As the Olympic fencing judge says, “En Garde!”