The Modern Irony of Civil Law: A Memoir of Strict Products Liability in the United States

Abstract

Modern civil law faces an extraordinary irony. Today, in the United States, civil law is in crisis. It is increasingly acknowledged that the crisis stems from the expansion of civil liability since the mid-1960s following the adoption in the U.S. of strict liability for product defects. The irony is that, just at the time that the devastating implications of the strict liability approach are becoming clear in the U.S., the European community has decided to impose strict products liability upon its member states. As Europe expands standards of civil liability, the United States, in response to the crisis, is engaged in massive retrenchment of civil liability. Since 1985, the legislatures of 39 of the 50 states have enacted some version of "tort reform" legislation. The most significant of these statutes is the 1987 New Jersey products liability act, which sharply halts the expansion of manufacturer liability in a state which had inspired and had led the post-1960s trend. Of even greater significance, within past months, the California Supreme Court, which in 1963 first introduced the concept of strict products liability, has itself recanted the strict liability approach. In Brown v. Superior Court (Abbott Laboratories), the California Supreme Court concluded that manufacturers of pharmaceuticals should be liable according to a standard no more rigorous than negligence because of the disastrous effects of strict products liability on the availability of drugs to consumers. This paper explores the crisis in the United States, the relationship of the crisis to the concept of strict products liability, and the modern U.S. retrenchment. There are many implications of the U.S. experience for the future of products liability law in Europe and in other nations, such as Israel, that have adopted strict products liability. Part I describes the civil law crisis in the United States. Part II reviews the history of strict products liability to attempt to explain what it is about the doctrine that has caused the crisis. It looks in particular at the original intent of the Founders of strict products liability to show how strict liability has departed from the original view in ways that have generated the current crisis in the U.S. Finally, Part III describes in more detail the counterrevolution of U.S. law and its implications for Europe and Israel.