The Design of Products Liability: A Reply to Professors Henderson and Twerski

Abstract

In The Expectations of Consumers, I examine a much-maligned products liability doctrine that attempts to rest manufacturer liability for defective product designs on the expectations of ordinary consumers. Although I concur with previous commentators who regard the consumer expectations doctrine to date as both undertheorized and unwieldy in application, I also observe the stubborn refusal of a significant minority of jurisdictions to abandon it. Notably, several of these jurisdictions have clung to the doctrine even after the decisive conclusion of the ALI's Restatement (Third) of Torts: Products Liability that consumer expectations are unworthy of recognition as an independent test for design defect. After first describing these treacherous waters, I then enter them