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Plaintiff success rates in products liability, Defendant success rates in products liability, Judicial decision making, Empirical legal studies, Pro-plaintiff caselaw, Judicial attitudes and products liability, Pro-defendant trends


Applied Statistics | Torts


Most revolutions are noisy, tumultuous affairs. This is as true of significant shifts in legal doctrine as it is of shifts of political power through force of arms. The pro-plaintiff revolution in products liability in the early 1960s will forever be associated with heroic, martial images, epitomized in Prosser's description of the assault upon, and fall of, the fortressed citadel of privity. In contrast to these noisy, exuberant events, the revolution to which we refer has gone all but unnoticed. In fact, some followers of the products liability wars will find our hypothesis so contrary to currently shared wisdom as to warrant its summary rejection. This quiet revolution is a significant turn in the direction of judicial decision making away from extending the boundaries of products liability and toward placing significant limitations on plaintiffs' rights to recover in tort for product-related injuries.

Our objective in this Article is to show that changes in judicial decision making are occurring and that current trends favor defendants. The endeavor is important for two reasons. First, this study shows that since the early to mid-1980s policymakers and industry leaders have been operating from questionable, if not false, premises. Industry leaders have characterized products liability lawyers and clients as a "plague of locusts," who "have brought a blood bath for U.S. business and are distorting our traditional values." The overall impression is one of an area of judge-made law on the rise, threatening to engulf the legal system, harming industry, and requiring legislative reaction to reign in judges. This Article shows, however, that even before many of the reforms were in effect, products liability had turned an important corner. The judges whom state legislatures sought to reign in had already begun a trend of doctrinal change favoring defendants.

The second major reason for considering the quiet revolution is more purely academic. The study and testing of the theory of legal change is maturing. In an article suggesting the shallowness of many assertions of legal change, George Priest raises important methodological questions about whether and how legal change can be detected. This Article is a rare effort to combine comprehensive, national empirical studies of both appellate and trial court activity to support the assertion of changing legal doctrine. It thus represents one possible, though largely untried, approach to the study of legal change.

Publication Citation

Published in: UCLA Law Review, vol. 37, no. 3 (February 1990).