Plaintiff success in products liability cases, Tort reform movement, Empirical legal studies, Quiet Revolution in Products Liability, Quiet Revolution, Declining plaintiff success rates, Nonasbestos products lines, Pro-defendant trends
Applied Statistics | Civil Procedure | Torts
"A bullet in the head of products liability reform." Thus did a lobbyist orally characterize our article in this law review, The Quiet Revolution in Products Liability, describing declining plaintiff success in products liability cases in the 1980s. From the coverage and criticism the Quiet Revolution received around the country and around the world, the trends we discovered struck many as surprising enough to be newsworthy and others as sufficiently threatening to warrant a special response. Products liability's sustained presence on state and federal legislative agendas warrants continuing and expanding the study begun in the Quiet Revolution.
This Article substantially augments our earlier sketch of national products liability trends in the 1980s. Major new endeavors include extending the analysis of trends to more recent years, reconciling some of the ambiguities in interpreting the observed trends, and describing and analyzing trends in the size of products liability case awards. The additional data confirm the earlier findings of declining plaintiff success rates, with the trends even more definite in the late 1980s. New surprises also emerge. Despite a widespread impression of ever-increasing awards in products cases, evidence of recent declining real-dollar awards is about as persuasive as is evidence of increasing awards. Combining success rate trends and award trends shows products liability in decline since 1985. By most measures, products liability's impact at the end of the 1980s had returned to about where it was at the beginning of the decade. Moving beyond describing and interpreting the national trends, we also examine the sources of defendants' increasing success. The 1980s pro-defendant movement is not the result of sharp reversals in a few jurisdictions; rather, it is truly national, with most states showing defendant success rate increases in the second half of the 1980s. Nor did the national trend result from shifts in a relatively few important products categories. As best we can tell, the trend spans nearly all nonasbestos products lines. Legislative reforms do appear to have contributed; but even in non-reform states, the success rate of products cases has declined. A widespread, independent shift in judicial attitudes continues to be the likely major source of the decline.
This general shift in attitude suggests that the tort reform movement of the 1970s and 1980s may have succeeded in a broader sense even if it failed to achieve many of its more specific legislative goals. As part of the case for reform legislation, tort reformers sought to reshape public opinion about products liability law. They successfully linked products liability cases to the mid-1980s insurance crisis; this linkage may have persuaded individual judges, as it tried to convince the public, that reform was needed. The judicial perception of the need for reform may have depressed plaintiffs' success rates.
Eisenberg, Theodore and Henderson, James A. Jr., "Inside the Quiet Revolution in Products Liability" (1992). Cornell Law Faculty Publications. Paper 396.
Published in: UCLA Law Review, vol. 39, no. 4 (April 1992).