Strict Products Liability at 50

I am no longer actively posting on this blog, but I also am not prone to cutting off my nose to spite my face. And so, I am happy to use this space for the limited purpose of  occasional self-promotion.

In that spirit, I just posted a new paper on SSRN. Its title is Strict Products Liability at 50: Four Histories. Here is the abstract:

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.

So, if any of you might be inclined to download the paper once or sixty times, you’ll be doing me a solid.

Closing Shop

My New Year’s resolution is to spend less time online. For me to have any chance of succeeding, I have to give up a few things. This blog, unfortunately, is one of them.

I never intended this blog to continue forever, so I am fine with cutting it off before it becomes a chore. That said, I have enjoyed posting here over the past two years, and may consider returning through some other venue in the future.

I don’t presume that this blog has been useful, much less influential. I have no idea how many site visitors it received, since I never really cared. But I have appreciated the occasional e-mail from individuals who stumbled across a post they liked, and e-mailed me to let me know as much. If you are one of these people, thank you.

Posted below are links to some of my favorite posts from the past two years. For classification purposes, I have divided them into posts where I wasn’t trying to be helpful (mostly attempts at humor), and those where I was trying to be just a little bit helpful.

Unhelpful Posts:

Handicapping the Possible Purchasers of SCOTUSblog Breaking News: Upcoming U.S. Supreme Court Term “Crammed With Blockbuster Cases,” Say Incredibly Biased People Breaking News: Coase’s Heirs Accept $100 to Hold Nobel Laureate’s Funeral Elsewhere

The Ultimate Dissent

Is the United States Government Conducting Surveillance on You? A Handy Chart

Which Supreme Court Justice Are You? A Personality Quiz Breaking News: SCOTUSblog Unveils Plan to “Eliminate the ‘Middle Man,’ ” Start Issuing Own Opinions

A Law-School Advertisement of the Near Future

Suggested Mottos for Other Law Blogs

Excerpts from Some Other Highly Critical Recent Book Reviews by Judge Richard Posner

Top Ten Rejected Blog Posts on the Supreme Court’s ACA Decision Breaking News: Husbands and Wives of Nation’s Constitutional Law Professors Collectively File for Divorce

Changes I Should Make to My CV, in Light of the Elizabeth Warren Kerfuffle

The Non Curat Lex Home Quiz for Law Professor Narcissistic Delusion

Admittedly Dumb Idea (Number One): The Proffie Awards

Fun With the Westlaw JLR Database

The Affordable Care Act USSC Oral Argument, If Hollywood Had Scripted It

The Gashlycrumb Tinies, Indexed to Franklin, Rabin & Green’s Tort Law and Alternatives

Posts in Which I Was Trying to Be a Little Helpful:

Autonomous Vehicles and the Vaccine Analogy

Photographs of Segregated Southern Bus Facilities, circa 1960

“Not all analogies are created equal,” and Florida v. Jardines

What Will Get a Police Officer Decertified? Records from the Florida Department of Law Enforcement

Is the U.S. Attorney’s Office for the District of Massachusetts Really “Particularly Immoral”?

Some Thoughts on the Computer Fraud and Abuse Act

From the Reagan Presidential Library: Glue sniffing? Did you have sex in high school or junior high? Do you buy or sell pornography? The (Draft) Background-Check Questionnaire and Other Documents Relating to the Kennedy Nomination Devil’s Advocate Corner: Why You Shouldn’t Become a Law Professor

You Can’t Always Choose Your Talents: William Rehnquist, The Novelist

From the Library of Congress: Warren Burger Gives Some Advice to Harry Blackmun; William Rehnquist Says Blackmun is a “Meh” Writer

Advice for Interviewing for a Prosecutor Position

Ghosts and the Color Line: The Drafting of the Restatement (Second) of Torts

Shepard v. United States: On Remand

Update (12/31): Just to complete the set, here are a few less-awful posts from the times when CoOp was desperate enough for material to host me as a guest-blogger:

Adventures on the Back of the Envelope, Part III: What’s the Hardest Federal Crime to Prove? 

Adventures on the Back of the Envelope, Part II: Warring Definitions of “Probable Cause” 

Adventures on the Back of the Envelope: Katz v. United States and the Popularization of the Phrase “Reasonable Expectation of Privacy”

Excerpts from My Upcoming Book, The Law Student’s Guide to Being on Call (Part I of II)

Recent Unsent E-mails from Antonin Scalia to Richard Posner, as Retrieved from Justice Scalia’s “Deleted E-Mail” Files

Hammontree v. Jenner: The Rest of the Story

The Annals of Article Placement

Ye Olde Professor’s Guide to Building an Exam Curve

Sandusky’s Law

A Guide to the Eight Most Suspect Types of Law Review Articles

Summers v. Tice: The Rest of the Story

“Mad Men” Meets Prosser?










Annals of Poor Math (1871)

From Harper’s Bazaar, June 24, 1871:

About fifteen years ago a curious contract was made between a Miss Evans and a Mr. Cooper, which has resulted in a novel lawsuit in Chenango County. It seems from the newspaper accounts that Mr. Cooper agreed to give Miss Evans one ewe lamb and its increase until she was twenty-one years of age, in consideration of a gold watch-key. The suit was brought to recover the sheep or its equivalent. The evidence showed that the increase was to be in ewe lambs, and that the natural increase of a flock of sheep would double every year. According to this estimate, Miss Susie would have at the end of fifteen years 16,064 ewe lambs, which, at $4 per head, would amount to $64,256. The justice heard the evidence, and, like a wise man, reserved his judgment. What the final result of the suit is has not yet been reported.


I think the Harper’s article contains a typo; by my math, Miss Susie was entitled to 16,384 lambs, not 16,064.

Other Recently Discovered Articles

The Harvard Law Review recently published a newly discovered work by H.L.A. Hart. Here are some other recently discovered law review articles:

Christopher Langdell: Offer and Acceptance — A Gray Area in the Law 

Lon Fuller: Oops, It Looks Like Roger Whetmore Actually Died of Natural Causes: Habeas Corpus and the Speluncean Explorers

Jerome Frank: Justice: The Brunch Complication

Charles Reich: The New Property 2: The Awesome New 1961 Cadillac Eldorado

William Prosser: Sometimes I Get Kind of Lonely Developing Tort Law All By Myself

Crash-Test Bears? (1962)

I came across this blurb in an old plaintiffs’ counsel newsletter (specifically, the NACCA News Letter, January 1962) while performing some unrelated research:

The FAA has announced that its Civil Aeromedical Research Institute will make more tests on the causes of injury & death of passengers in plane crashes. Using animals, & especially bears because of their similarity in frame in humans, strapped into seats, the Institute plans to simulate crashes up to 100 m.p.h. Dr. Sidney Mohler, director of the program, said that various structures inside the cabin would be studied, since structures such as hatracks, magazine racks, & ceiling lights had taken lives in the past.

Similarity in frame? Compared to a mouse, sure, but really?

The Car that Drives Itself (1958)

In scanning the web for old stories about autonomous vehicles the other day, I came across this 1958 article from the magazine Popular Science, “The Car that Drives Itself.” The article, by Martin Mann, begins with the lede, “I drove a car with no hands.”

The text details efforts by General Motors to come up with a system for controlling cars through a track-and-beam system, somewhat akin to the scheme Norman Bel Geddes proposed in GM’s Futurama exhibit in 1939. The article is pretty interesting, as it touches upon subjects such as moral hazard and the optimal amount of autonomy to integrate into the vehicle.

By the way, there is an ongoing exhibition on Bel Geddes at the Museum of the City of New York, through February 10, 2014. Bel Geddes had an amazing career as an industrial designer; for anyone with an interest in the subject who plans on being in New York between now and then, it might be worth a visit.

Holiday Card Preview

I hope to post an online version of this year’s holiday card sometime next week. The card tells a holiday-themed story and features Justices Scalia and Ginsburg, or at least their puppet incarnations. I promise it will be heartwarming and only moderately inappropriate.

As a preview, here’s one photograph that didn’t quite make the cut. Trust me, this would have made perfect sense in context, and no, it’s not intended to suggest any corruption. Quite the opposite.


Action Park Documentary! Action Park Documentary!

All torts professors and former New Jersey residents (I claim under both lines) know about Traction Action Park, the World’s Most Dangerous Amusement Park prior to its forced closure in 1996 by a mob of local townspeople wielding torches and pitchforks.

The Wikipedia entry for Action Park conveys what made it special: “The park’s popularity went hand-in-hand with a reputation for poorly designed, unsafe rides; underaged, undertrained, and often under-the-influence staff; intoxicated, unprepared visitors; and a consequently poor safety record.” Ah, the memories.

I like to discuss some of the park’s rides in my Torts class, particularly when we talk about assumption of the risk. Like the Cannonball Loop, a waterslide that ended in a physics-defying, impossibly tight loop-de-loop. Or the wave pool that greeted children with North-Shore-after-a-Class-4-typhoon-sized breakers. Or the Alpine Slide, dueling go-carts that sent people down a concrete chute that eventually clogged with the scraped-off skin of riders.

Until now, all I had to illustrate the park were a few photographs and this dated 1980s commercial, which entirely fails to convey the lurking menace of the place. A student of mine, however (shout out) just sent me this link to a recently produced documentary on Action Park. (And a second shout-out to Seton Hall Law Professor Brian Sheppard, who features in the video. Watch, and you’ll see the author of “Norm Supercompliance and the Status of Soft Law” say, and I quote, “In my experience as a lawyer, whenever things go through the Cayman Islands, it’s always a red flag for sketchiness.” Awesome.)

What kind of amazes me about this video is that SEVERAL PEOPLE DIED at Action Park. And now there’s a sort of hazy glow about the place. Like it was the ol’ fishin’ hole, only if the fishing hole was full of piranhas and underfed grizzly bears.

Excess of Democracy

For those of you who haven’t seen it yet, since March 2013 Professor Derek Muller of the Pepperdine University School of Law has been offering up one excellent post after another on his blog, titled Excess of Democracy. Along with Robert Anderson’s Witnesseth (named to the ABA Blawg 100 this year) and Paul Caron’s perennial powerhouse TaxProf Blog, Pepperdine is turning into the academic law-blog hub of the West.



December Auction Roundup

Some items under the hammer this month:

Holiday Exam / Card for Readers

Constitutional Law 

Final Examination

The Professors Graham

Holiday 2013 Semester


  1. You have three hours to complete the exam, which consists of a single question.
  2. This is a closed-book exam.
  3. Assume that the facts as given are true.
  4. Good luck! 

Question One

On January 3, 2012, Congress passed the Naughtiness Obliteration and Elimination Law of 2012 (P.L. 112-000.5) (hereinafter “the NOEL”). President Obama signed the NOEL into law three days later.

Among its findings, the NOEL relates that “there exists an epidemic of naughtiness among the nation’s children . . . neither the states nor private institutions can control this plague on their own . . . therefore, federal action is not only desirable, but necessary.” As enacted, the NOEL:

(1)     Imposes a naughtiness “fee” of $50 upon each American child for every documented instance of their “naughtiness.”  Revenues from this “fee” are to support the Federal Nice Fund (FNF), a newly created fund for public-works projects in NOEL-compliant states. (NOEL, § 3(a).)

(2)     Creates a new federal agency, the Naughtiness Review Board (NRB), tasked with drafting binding rules to distinguish true “naughtiness” from merely obstinate, immature, or annoying behavior, all of which lie beyond the scope of the NOEL. (Id., § 7(d)(2)(D)(iii).)

(3)     Assigns to individual states and localities exclusive responsibility for identifying specific instances of naughtiness (in a manner consistent with NRB rules), and for collecting the associated “fees.” (Id., § 14(b)(1)(B)(ii)(#)(?).) If a state declines to perform these tasks, the NOEL requires the federal government to place that state on a federal “naughty” list. Placement on this list (1) automatically makes a state ineligible to receive FNF funds, and (2) generates a conclusive presumption that all children within the state are “naughty.” (Id., § 15(c)(3)(Q)(iv)(!)(@)(?)(®).)

(4)     To ensure full compliance, the NOEL bars any “person, group, or agency” that receives “funding, or any benefit from the federal government” from making a “material naughtiness determination” contrary to rules promulgated by the NRB, with the consequence of such a contrary determination being withdrawal of the federal funding and/or other benefit. (Id., § 22(z)(12)(F)(vii)(¥)(‰) (LOL)(¿)(?)(D).)

Also, the passage of the NOEL somehow caused a penny scale to topple onto a woman standing at a train station in Brooklyn.

Question: Assume that on December 1, 2013, the following plaintiffs bring suit in federal district court, challenging the constitutionality of the NOEL:

1)       Violet Thompkins, a nine-year-old Vermont resident whom an NRB rule classifies as “naughty” because she refuses to eat her broccoli at supper;

2)       Thaddeus and Harriet Thompkins, Violet’s zealously overprotective parents;

3)       Bobby Chavez, a goody-goody seven-year-old Texas resident, who nevertheless has been classified as “naughty” because his state refuses to participate in the NOEL scheme;

4)       Ken Cuccinelli, attorney general of the state of Virginia, suing on behalf of that state, because he seems like he’d probably get involved in something like this; and

5)       Santa Claus, who maintains his own “naughty” list for purposes of gift distribution, and receives a special exemption from the Federal Aviation Administration to fly around the nation, under the radar, on Christmas Eve.

Draft an analysis of these challenges to the NOEL in which you address:

(1)    The arguments, sounding in the Constitution of the United States, that each plaintiff plausibly might advance against the NOEL (here, make certain to consider whether the plaintiff would have standing to raise these arguments);

(2)    The government’s anticipated responses in defending the NOEL;

(3)    How the courts are likely to rule; and

(4)    The forms of relief available to each plaintiff, if any.


Happy Holidays!


This was, in fact, last year’s card, as sent to our relatively short “snail mail” list of card recipients; I just updated the dates for this post.

For the past decade or so, my wife and I have prepared law-themed holiday cards. We started with a contract, moved on to a prospectus, wrote a couple of opinions, and since I started my current job in 2009 we’ve written a series of “exams.” These exam cards are little four-page numbers that we design to look like old-time exam booklets. Last year set itself up well for an ACA parody card.

Autonomous Vehicles and the Vaccine Analogy

I have some friends in the legal academy who are really enthusiastic about autonomous (self-driving) vehicles. They foresee a future in which these devices carry us to and fro more safely and efficiently than current, human-directed vehicles do.

But many of these same people worry that this future will never come to pass. One concern is that the threat of tort liability down the proverbial road will dissuade possible innovators from making the necessary investments in these devices. And so, some of these advocates have recommended that Congress preempt tort claims against autonomous-driving technologies to encourage their development and diffusion.

In making this argument, boosters sometimes point to the example set by the partial preemption of personal-injury claims associated with the administration of childhood vaccines. As some of you know, in 1986 Congress passed a law that shifted these claims from “traditional” courts and juries to a special forum, which can award damages (funded by an excise tax on the vaccines) upon proof that a claimant’s injury was associated with a covered vaccine. Significantly, this scheme caps pain and suffering damages at $250,000, a ceiling that offers cost certainty to vaccine manufacturers. This statute is today widely regarded as having rescued the childhood vaccine industry from possible ruin, and some people who want to encourage the development of autonomous cars argue that a similar, liability-limiting system (or a more robust preemption scheme) should apply to these vehicles.

Personally, I am more or less agnostic on preemption as it applies to autonomous vehicles. But I am not certain that the vaccine analogy is an especially compelling one. Let me explain why.

Let me start with the circumstances that I regard as creating a paradigm case for preemption premised on a bare threat of ruinous liability (as opposed to, say, preemption designed to ensure the supremacy of federal law, or to avoid interjurisdictional conflicts). Such an argument seems to make the most sense as applied to a device or technology that’s reasonably established as being (1) irreducibly unsafe in some respect; but (2) health- or safety-enhancing, relative to all practical substitutes; and (3) as to which the costs associated with tort judgments are so great as to render continued development or production impractical or undesirable.

The first of these points suggests that tort liability will not encourage further refinements in design, warning, or manufacturing, because it can’t. The second underscores that the product is a socially desirable one, worthy of protection notwithstanding its flaws. The third substantiates an intuition that the product is going to disappear unless the normal mechanics of tort law are somehow constrained.

The history of childhood vaccines, and the status of the vaccination market in the early 1980s, supplies a much better argument for preemption of vaccine lawsuits—along all three dimensions discussed above—than presently exists for preemption of lawsuits involving autonomous cars. In the interest of time, I am going to focus here on the third of these characteristics — the threat to the industry posed by the “normal” application of tort law.

Between 1980 and 1985, 299 lawsuits were filed against the producers of childhood vaccines for injuries allegedly associated with the administration of these vaccines. These lawsuits targeted an industry that was neither especially large nor especially profitable. According to one government report, total sales of childhood vaccines amounted to just $385.8 million for the four-year period between 1981 and 1984, a figured dwarfed by the $3.5 billion in damages demands made in the aforementioned lawsuits. One contemporary media report quoted an employee of a vaccine manufacturer as saying that the dollars demanded in lawsuits pending against the company relating to alleged injury from the pertussis vaccine were 200 times the total sales of the vaccine it produced in 1983. Furthermore, while the precise profitability of the vaccine market at the time is unclear, several of the largest customers had significant buying power, a fact that normally keeps margins relatively low.

A spike in outlays occasioned by product liability suits–through direct damages payments or insurance costs (if insurance were available at all)–thus threatened to drive what was at most a modestly profitable business into the red. The difference between the modest revenues and possibly immense liability exposure also made it difficult for manufacturers to price their vaccines so that they could pass costs on to consumers (especially without being accused of price gouging, a charge that might have negative implications for their other products). Nevertheless, vaccine prices did spike in the early 1980s (rising between 50 and 900 percent during this span, depending upon the vaccine and market), and liability costs received much of the blame.

Predictably, given these circumstances, childhood vaccine manufacturers fled from the business. Per one Congressional report that accompanied the preemption law:

Between 1966 and 1977, half of the commercial corporations producing vaccines in the U.S. ceased production and distribution of these products. Since 1977 this contraction has continued. In 1985, there were only four commercial firms producing and distributing the primary vaccines used in childhood immunization programs. It has been suggested that there are certain characteristics of the vaccine market that make vaccine production and distribution relatively unattractive from a commercial perspective, which in turn has acted to discourage producers from entering or staying in the business of producing vaccines.

The four remaining domestic, private participants could very credibly threaten to leave the business themselves. Most of these entities had many other product lines to keep their corporate coffers full, if they chose to leave vaccine manufacture behind:

  • Other products marketed by Wyeth Laboratories’ parent (American Home Products Corporation) included Anacin, Dristan, Preparation H, Crunch ‘n’ Munch, Woolite, Pam Cooking Spray, and Easy-Off oven cleaner.
  • Lederle Laboratories’ parent (American Cyanamid Company) sold products including Lady’s Choice antiperspirant, Old Spice deodorant, Breck shampoo, Formica brand laminates, and Pine-Sol liquid cleaner.
  • A third vaccine producer, Merck, claimed a robust portfolio of profitable prescription drugs.

The other drugs and consumer goods sold by these companies were big business, compared to vaccines: according to their respective annual reports, American Home Products, American Cyanamid, and Merck boasted 1983 revenues of $4,857 million, $3,536 million, and $3,246 million, respectively.

Meanwhile, no guarantee existed that new entrants would replace these dropouts. Development of a new vaccine was then, as it is now, a costly affair. Other companies conceivably might purchase an existing vaccine business from an existing participant—but why would they, given the market dynamics discussed above?

* * *

In sum, the threat to the vaccine market in the mid-1980s was real, not just theoretical. Manufacturers’ threat of exit was bolstered by the facts that other companies had abandoned the business, childhood vaccines were a small, relatively flat, and not especially lucrative business, and these companies had other product irons in the fire. Meanwhile, substantial barriers blocked new entrants.

For the autonomous vehicles / vaccines analogy to prove persuasive, I’m going to need to see similar evidence that tort liability poses a real, as opposed to an existential threat to the development of autonomous cars. (I’ll also need to hear more about how autonomous vehicles will in fact be safer than human-operated vehicles, but that’s another story.)

Annals of Closing Statements in Exploding Bottle Cases

In connection with an ongoing research project, I have been reading all about exploding soda and beer bottles. While doing so, I came across this paraphrase [in an old NACCA annual convention transcript] of a nice closing statement by plaintiffs’ attorney Sam Rosenthal, wrapping up a mid-century bottle case. As background, the plaintiff was a cafe owner; the defendant, a beer bottler. Also keep in mind that the bottles of the era tended to be reused many times by the bottler:

I wish this little bottle could talk. [Holding up the bottle] I wish this little bottle could talk. Do you know what it would have said? It would have said, ‘Ladies and gentlemen of the jury: When I was born I had some defect. They didn’t give me a strong body. I slipped by the manufacturer with several others because I looked so well. You couldn’t tell by looking at me what my body was like, but I had some defect there. I had some pain along the side. One side was not quite as strong as the other. You couldn’t tell by just looking at me.

I have seen some of my brothers placed in the machine. I don’t know what you call it. They were looking at some of my brothers and sisters from the same batch but they passed me. I also heard and saw them rapping my brothers and sisters. They rapped me, too, a little. It didn’t seem to indicate I had a weak body. I got by that, too. They let me go to the brewery. They filled me up with beer. I was sent back. I had pain constantly. I wasn’t very happy. 

Then came a day I deeply regret because several times, maybe fifty or a hundred times, maybe more, I went through. Then I went to the establishment of Mr. Gordon, a very nice fellow. He didn’t mishandle me at all. He did nothing at all to me. He just took me out, but by that time I couldn’t stand it any longer. I gave way. I made a lot of noise and went to pieces and a part of me entered Mr. Gordon’s eye and blinded him. It wasn’t my fault and it certainly wasn’t his fault. They just didn’t take good care of me. I wish they could take me back and give me a new life and give him a new eye, but they can’t.

I just wish this bottle could talk, ladies and gentlemen of the jury.

For you torts geeks out there, Gordon resulted in a plaintiff’s judgment (of course it did, after that closing argument), after which the case ratcheted up the appellate ladder to the California Supreme Court. That court affirmed, with Justice Traynor writing a concurring opinion that echoed most of the arguments he had made a few years earlier in his Escola concurring opinion.