Document Type

Article

Publication Title

North Carolina Law Review

Abstract

There is a quiet irony about the recent revolution in the law of products liability. Since 1960, doctrinal changes have taken place everywhere on the face of the law. Courts, freed from the shackles of the past, have been forthright in their adoption of progressive and innovative positions. The watchwords are consumer protection, loss spreading and economic efficiency. The changes introduced under these banners have worked uniformly to extend liability beyond its previous boundaries and, with but a few exceptions, the modern trends have been strongly endorsed by the academic literature in the law reviews. Viewed from inside the legal profession the growth of the modern products liability-law is a triumph of the common law. There is, however, another side of the matter that requires the tempering of elation with caution. The changes that have met with such approval within the legal community have been the source of much concern to many individuals who have been governed by them. The doctrinal changes within the law of tort were once dry and technical matters that fell within the exclusive province of lawyers and law reviews; yet within the last two or three years the issues of products liability law have spilled over into the public arena. The most vivid illustration of the public policy aspects of products liability law has been the confusion and uncertainty that followed the introduction, suspension and eventual abandonment of the swine flu program in 1976, for it is now the federal government that stands to pay untold millions of dollars in judgments and litigation expenses. But the concerns have deeper roots than even this dramatic incident suggests. Special commissions for the review of products liability law have reported at both the state and federal level. The entire matter of products liability reform has, for the first time, become an important item on many legislative agendas. The triumph of the common law has generated a mounting social dissatisfaction, coupled with the sense that there has been a major, if unarticulated, shift in the premises of the tort system. The coexistence of enthusiasm and concern is not mere coincidence, for doctrinal changes have brought in their wake economic and social dislocations. It is, however, one thing to note that the tort system seems out of joint, but quite another to isolate the reasons for the discontent and to pinpoint sensible reforms that prune away excesses while preserving the tort system intact. That task is formidable. The law of products liability is highly complex and needs to be studied both as a self-contained system and as part of a larger system of tort law. Its points of connection with the rest of the tort law are evidenced by a core of common terminology-that of strict liability, negligence, causation, assumption of risk and the like. Its uniqueness rests both on the special rules that it has fashioned and the rationales that have been used to defend and explain them. It is necessary, then, to begin with fundamentals, then move to applications.

First Page

643

Volume

56

Publication Date

1978

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