Law and Economics Article 123 Harv. L. Rev. 1919

The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell


Response To:


The Uneasy Case for Product Liability, authored by Professors A. Mitchell Polinsky and Steven Shavell, cannot sustain the burden it has set for itself. The evidence it marshals is surprisingly scant, consisting of anecdotes about products that suffered declining sales after being linked to certain injuries, observations about consumer’s improved access to safety information, a brief review of inconclusive studies of whether a rule of strict liability better deters the sale of unsafe products than a negligence rule, reminders of the high costs of civil litigation, and a smattering of microeconomic theory. These observations are nowhere near sufficient. In essence, Uneasy argues for the elimination of an entire body of law based on the absence of social scientific evidence of a certain sort demonstrating the significance of its contribution to the goals of deterrence and compensation. For anyone prepared to credit criticism on these terms, there is much more to be uneasy about than a branch of tort law: it is doubtful that any body of law measures up to these peculiar standards.

In purporting to demonstrate the absence of a case for the imposition of liability on sellers for injuries caused by defective products, Uneasy also vests inexplicable confidence in market incentives and a regulatory system with failings that are exasperating to critics across the political spectrum. Its apparent satisfaction with the level of first-party health insurance enjoyed by injury victims today is no less puzzling. And strikingly missing from the entire picture is any mention of the basic principle that a person wrongfully injured by the sale of a dangerous product should be able to hold the manufacturer accountable for her injuries. When one begins with a more realistic view of what products liability law really is, what place it holds within our political system, and what values it stands to serve, one quickly comes to appreciate that the basic case for products liability law is actually quite easy.