Law and Economics Article 123 Harv. L. Rev. 1949

A Skeptical Attitude About Product Liability Is Justified: A Reply to Professors Goldberg and Zipursky

Response To:


In The Uneasy Case for Product Liability, Professors A. Mitchell Polinsky and Steven Shavell maintained that the benefits of product liability are likely to be less than its costs for many products, especially widely sold ones. The article was intended to alter the dominant view held by the judiciary and commentators that product liability has a clear justification on grounds of public policy. It argued instead that a skeptical attitude toward product liability should be adopted.

Professors John Goldberg and Benjamin Zipursky strongly criticize the article in The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell. To a significant extent, however, they attack a straw man, for they impute to the article a radical thesis – that product liability should be eliminated for all widely sold products – that Uneasy manifestly did not advance. In fact, Uneasy argued that whether product liability is undesirable depends on the particular product. Goldberg and Zipursky also ascribe to Uneasy other opinions that exaggerate its actual claims – notably, they state that Uneasy maintains that product liability has no beneficial effect on product safety for widely sold products. It is not surprising, therefore, that they are unable to support these mischaracterizations with citations to statements in the article.

The major claim that Goldberg and Zipursky develop is that Uneasy’s benefit-cost analysis fails to demonstrate that the case for product liability is uneasy. In this Reply’s view, their critique is deficient on multiple accounts, including that it contains numerous distortions and errors, and hence does not alter Uneasy’s original conclusion.