Rescuing the Revolution: The Revived Case for Enterprise Liability

The article proceeds as follows. Part I defines important terms and introduces the two-by-four Products Liability Matrix by explaining the eight possible positions that might be taken with respect to the mutability and liability-standard dimensions of products liability. Part II provides a backdrop for the current products liability debate, first by setting out a capsule history of the evolution of the modem products liability regime, and then by explaining the arguments offered by the “first generation” of products liability scholars to justify expanded manufacturer liability. Part II also illustrates the utility of the Products Liability Matrix by locating many of the landmark products liability cases within it. (Readers already familiar with the history of products liability may want to skip Part II, though they may find that examining classic cases in terms of the Products Liability Matrix offers some novel insights into an otherwise familiar area.)

Having provided the necessary framework in Parts I and II, the article in Part III analyzes the current products liability debate by critiquing individual members of the contractarians’ and regulators’ camps. Part III first sets forth the contractarians’ seemingly successful rejection of the first generation’s rationales for expanded manufacturer liability. Part III then uses the Products Liability Matrix to show how scholars in both the contractarians’ and the regulators’ camps have taken positions in one dimension of the Matrix that are in tension with the positions they take in the other dimension. Part III further explains why the current products liability debate is unsatisfying. Part IV provides an affirmative case for enterprise liability by articulating the market failures that necessitate regu1ation. By offering new arguments on behalf of the old justifications for the expansion of manufacturer liability, Part IV revives the legacy of the first generation, whose instincts Part IV argues were correct but whose arguments lacked economic sophistication and thus provided an easy target for the present generation of products liability scholars.