Putting fault back into products liability: A modest reconstruction of tort theory

Abstract

This paper postulates that the proper function of tort law is to provide protection from, and redress of, non-consensual invasions of individual rights of person and property. It then proceeds to analyze and criticize, in that context, several theories of the law of unintentional torts including traditional English negligence law and the models of Posner, Fletcher and Epstein. That analysis proceeds in terms of the answers of each theory to a uniform set of questions which must be answered by any theory of the law of unintentional harms. The paper concludes that none of the theories examined is “rights-based” or, indeed, consistent with the existence of individual rights of person and property.

The paper goes on to elucidate a theory of liability which is rights-based. That theory turns out to be variant of traditional English negligence law in which reasonable foreseeability of harm to legally recognized rights or interests is the sole criterion of liability, the burden of precautions on the agent of the harm being explicitly excluded from consideration.

Finally, the rights-based theory is applied to the area of products liability. It is demonstrated that this area of the law of unintentional harm does have the same moral foundations as the general law of negligence so that resort to the anomalous, and amoral, constructs of fictitious warranties, strict liability, enterprise liability and “the deep pocket” is neither appropriate nor necessary.