The Role of Private Litigation in the Automotive Recall Process

Abstract

This Article presents an empirical perspective on the role of tort litigation in generating federal automotive recalls. It begins with a brief history of the American automotive recall process, beginning with the creation of the federal agency responsible for handling such recalls, the National Highway Traffic Safety Administration (NHTSA). It then details the contemporary automotive recall process, examining the administrative apparatus within NHTSA that investigates and orders recalls. Next, it provides the traditional view of private litigation's role in the automotive recall process, which sees private litigation's only role in the initiation of automotive recalls as creating the specter of post hoc liability for defect-related injuries. The heart of the paper tests this view by generating a dataset containing automotive recalls issued in 2014, coding each recall for the presence of defect-related litigation filed before the recall was initiated. The data, alongside narratives of each recall that coded positively for pre-recall litigation, demonstrates that the majority of vehicles recalled were preceded by defect-related litigation. This data an alternative view of private litigation's role in the automotive recall process, one that asserts the existence of a more direct, investigatory role for private litigators in initiating recalls.

Keywords: tort, regulation, automotive safety, National Highway Traffic Safety Administration, litigation, recalls, ignition switch defect