Product-Related Risk and Cognitive Biases: The Shortcomings of Enterprise Liability

Products liability law has witnessed a long debate over whether manufacturers should be held strictly liable for the injuries that products cause. Recently, some have argued that psychological research on human judgment supports adopting a regime of strict enterprise liability for injuries caused by product design. These new proponents of enterprise liability argue that the current system, in which manufacturer liability for product design turns on the manufacturer\u27s negligence, allows manufacturers to induce consumers into undertaking inefficiently dangerous levels or types of consumption. In this paper we argue that the new proponents of enterprise liability have: (1) not provided any more than anecdotal evidence for their thesis; (2) failed to account for the mechanisms the law already has available to counter manufacturer manipulation of consumers; and (3) made no effort to address the well-known problems enterprise liability creates. Furthermore, even on its own terms, the new arguments for enterprise liability fail to consider the tendency of some manufacturers to exacerbate the risks that some products pose - a tendency that enterprise liability would exacerbate. In short, the insights gleaned from psychological research on human judgment do not support adopting a system of strict enterprise liability for products

A Voice of Reason: The Products Liability Scholarship of Gary T. Schwartz

Of my many fond personal memories of Gary Schwartz, the one that stands out most vividly summons from the mists of time an evening in June 1983 at Boston\u27s Fenway Park. It was my last visit to a childhood haunt where I had seen my first professional baseball game in 1941, an occasion that marked the beginning of a lifelong passion for the national pastime. Settled into an excellent seat that faced the storied left-field wall (and brought to mind visions of the large advertisements that covered its surface before it became known as the Green Monster”,), I began to lose myself in the contest that was leisurely unfolding. But I hadn\u27t counted on my two companions, Gary Schwartz and David Owen, who in about the second inning launched into a perfervid, nonstop discussion of some problematic issue raised by the California Supreme Court\u27s holding in Barker v. Lull Engineering Co. I found myself engrossed by their earnest give-and-take and soon rendered totally oblivious to how the Red Sox were faring. It was then I truly realized how much of an academic I had become

Exploring Agricultural Production Systems and Their Fundamental Components with System Dynamics Modelling

Agricultural production in the United States is undergoing marked changes due to rapid shifts in consumer demands, input costs, and concerns for food safety and environmental impact. Agricultural production systems are comprised of multidimensional components and drivers that interact in complex ways to influence production sustainability. In a mixed-methods approach, we combine qualitative and quantitative data to develop and simulate a system dynamics model that explores the systemic interaction of these drivers on the economic, environmental and social sustainability of agricultural production. We then use this model to evaluate the role of each driver in determining the differences in sustainability between three distinct production systems: crops only, livestock only, and an integrated crops and livestock system. The result from these modelling efforts found that the greatest potential for sustainability existed with the crops only production system. While this study presents a stand-alone contribution to sector knowledge and practice, it encourages future research in this sector that employs similar systems-based methods to enable more sustainable practices and policies within agricultural production

The Easy Case for Products Liability: A Response to Polinsky & Shavell

In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, “Uneasy,” comes nowhere near to demonstrating what it purports to demonstrate. We also identify various “benefits” provided by tort liability for product-related injuries that Polinsky and Shavell entirely fail to consider. In fact, the case for some form of products liability - whether fault-based or defect-based - is really quite easy

A Critique of the Proposed Tobacco Resolution and a Suggested Alternative

The following essay is adapted from testimony presented to the Senate Democratic Task Force on Tobacco in Washington, D.C., on Oct. 9 1997, which in turn is based on the authors\u27 forthcoming article, The Costs of Cigarettes: The Economic Case for Ex Post Incentive-based Regulation, 107 Yale Law Journal (March 1998) If the goal of cigarette regulation is either to reduce substantially the public health problem created by cigarette smoking or to allocate the costs of smoking more equitably, there are significantly better alternatives to the regulatory regime than would be created by the state attorneys general\u27s Proposed Tobacco Resolution. Indeed, from either perspective, we are doubtful that the current proposal represents an improvement over the status quo. Our study of the issue leads us to make two largely independent criticisms of the proposed resolution. We will only mention the first here and will focus our attention on the second