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Judicial decisionmaking and products liability cases, Pro-defendant trends, Empirical legal studies, Products liability reforms, Plaintiff success rates


Applied Statistics | Civil Procedure | 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. Indeed, the pro-plaintiff revolution in American 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 fortress citadel of privity. The same sort of terminology aptly could be used to describe the last five or ten years of legislative reform activity in the various states. Reacting to what many see as "crises" brought on by courts extending liability too far, state legislatures have enacted breathtakingly large numbers of changes in products liability law, ranging from the trivial to the drastic to the Draconian. For anyone who follows products liability, these developments bring to mind the ancient Chinese curse: "May you live in interesting times."

In contrast to these noisy, exuberant events, the revolution to which we refer has gone all but unnoticed. Many followers of the American products liability wars will find our hypothesis so counterintuitive as to warrant its summary rejection. The quiet revolution to which we refer is a significant turn in the direction of judicial decisionmaking away from extending the boundaries of products liability and toward placing significant limitations on plaintiffs' rights to recover in tort for product related injuries. These changes are quite recent. Looking back on these events in years to come, scholars are likely to trace the turn in judicial lawmaking to the early to mid-1980s. Although some who follow products liability cases closely have begun to sense change, even those who track products developments will be surprised to find the roots of the trend in the early 1980s.

Our objective in this Article is to substantiate that changes in judicial decisionmaking are occurring and that current trends favor defendants. 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." Reacting, one hopes, to somewhat less extreme descriptions of products reality, several federal proposals for products reform have been introduced and many states have enacted limiting legislation. 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 rein in judges. We will show that even before many of the reforms were in effect, products liability had turned an important corner. The judges whom state legislatures sought to rein in had already begun a trend of doctrinal change favoring defendants. This trend is evident in an increasing percentage of published opinions favoring defendants. At the trial court level, at a time when plaintiffs' likelihood of success in products cases is said by many to be increasing, it has been moving in quite the opposite direction.

Publication Citation

Published in: Anglo-American Law Review, vol. 20, no. 3 (1991).