Differentiating Strict Products Liability’s Cost-Benefit Analysis From Negligence

32 Pages Posted: 6 Apr 2022

See all articles by Paul F. Rothstein

Paul F. Rothstein

Georgetown University Law Center

Ronald J. Coleman

Georgetown University Law Center

Date Written: January 8, 2022

Abstract

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility[.]” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of negligence enough to protect the public or is a strict liability system preferable? If a strict liability system is preferred, what system should be adopted and how can standards be set that are stricter than negligence but not overly draconian? The current strict products liability paradigm is predicated upon—at least in many courts and for certain categories of product defects—a “risk-utility” or “cost-benefit” analysis conducted by the fact-finder. While such cost-benefit form of strict liability offers flexibility, many have charged that it is really no different from ordinary negligence, which itself contemplates very similar balancing. We disagree. In this Article, we isolate a discrete decisional framework within which strict liability balancing can be situated, and we then identify and discuss five plausible standards that preserve a cost-benefit balancing, are stricter than negligence, and do not constitute absolute or excessively strict liability.

Keywords: products liability, strict liability, negligence, cost-benefit analysis, legal standard, torts, jury

Suggested Citation

Rothstein, Paul F. and Coleman, Ronald J., Differentiating Strict Products Liability’s Cost-Benefit Analysis From Negligence (January 8, 2022). Loyola of Los Angeles Law Review, Vol. 56, 2023 Forthcoming, Available at SSRN: https://ssrn.com/abstract=4072959 or http://dx.doi.org/10.2139/ssrn.4072959

Paul F. Rothstein

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Ronald J. Coleman (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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