The Deep Contradiction between Product Liability and Market Share Liability

Abstract

This essay discusses the conceptual bases of modern products liability and of market share liability.  It attempts to show the vast difference—almost to the point of being contradictory—between these two mechanisms for apportioning liability for injuries from product use.  Because of the substantial relative dominance of products liability law in the modern legal landscape—covering multiple products and services never considered for market share liability—there are serious questions as to whether market share liability can contribute to the overall societal ambition of internalizing costs.  This essay will explain the very narrow circumstances (if any) in which market share liability can complement the operation of products liability law.

Keywords: Markets, Products liability, Market share liability