Products Liability Reform: A Theoretical Synthesis

Abstract

The debate among practicing lawyers and legislators about products liability reform has failed to consider much of the recent scholarship in the law and economics of contracts and torts. In light of these literatures, some seriously discussed reform proposals, such as a renewed commitment to the "fault principle," seem unhelpful; other apparently promising ideas do not appear on policymakers' agendas. This Article proposes solutions to products liability problems that integrate and apply the insights of the contracts and torts theorists. It evaluates both current law and these solutions under the dominant norm in the contracts literature: consumer sovereignty. This norm holds that the law should reflect the preferences of competent, informed consumers regarding risk allocation.