The authors agree with Professor Kysar that the current version of the consumer expectations test for design defectiveness is an amorphous, unprincipled misreading of section 402A of the Restatement (Second) of Torts. And they agree that most courts apply risk-utility balancing in determining design defectiveness. But they disagree with Kysar's proposal to supplement risk-utility balancing with a reinvigorated consumer expectations test based on expert testimony regarding what consumers actually expect in the way of design safety. Judicial reliance on such testimony would be susceptible to result-oriented manipulation by litigants, would not guide manufacturers in making sensible design choices, would pressure courts to exceed the limits of their institutional competence, and would undermine the new Restatement's commitment to making products safer. In the final analysis, Professor Kysar's suggested approach to design liability rests on an unworkable premise, implicit in his article, that the authors reject-that enterprise liability is a worthy, attainable goal toward which courts should strive.
{"title":"Consumer Expectations’ Last Hope: A Response to Professor Kysar","authors":"A. Twerski, J. Henderson","doi":"10.2307/3593403","DOIUrl":"https://doi.org/10.2307/3593403","url":null,"abstract":"The authors agree with Professor Kysar that the current version of the consumer expectations test for design defectiveness is an amorphous, unprincipled misreading of section 402A of the Restatement (Second) of Torts. And they agree that most courts apply risk-utility balancing in determining design defectiveness. But they disagree with Kysar's proposal to supplement risk-utility balancing with a reinvigorated consumer expectations test based on expert testimony regarding what consumers actually expect in the way of design safety. Judicial reliance on such testimony would be susceptible to result-oriented manipulation by litigants, would not guide manufacturers in making sensible design choices, would pressure courts to exceed the limits of their institutional competence, and would undermine the new Restatement's commitment to making products safer. In the final analysis, Professor Kysar's suggested approach to design liability rests on an unworkable premise, implicit in his article, that the authors reject-that enterprise liability is a worthy, attainable goal toward which courts should strive.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1791"},"PeriodicalIF":2.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593403","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69173260","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"How to Read Gonzaga: Laying the Seeds of a Coherent Section 1983 Jurisprudence","authors":"Sasha Samberg-Champion","doi":"10.2307/3593406","DOIUrl":"https://doi.org/10.2307/3593406","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1838"},"PeriodicalIF":2.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593406","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172924","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 1997, the American Law Institute promulgated the Restatement (Third) of Torts: Products Liability, an ambitious and important project that decisively rejected the consumer expectations doctrine in favor of a risk-utility test for product design defect claims. In the few years following promulgation of the Third Restatement, however, several courts have issued opinions expressing strong judicial allegiance to the consumer expectations doctrine. Indeed, at times they have appeared deeply suspicious of the ALI Restatement project and its recommendation to abandon consumer expectations as an independent test for product design defectiveness. This article examines the disjunction between rhetoric and reality in post-Third Restatement products liability decisions. It aims to demonstrate, first, that the doctrinal framework established by the Third Restatement is in fact an accurate representation of design defectiveness litigation despite the apparent persistence of the consumer expectations test. Second, this article seeks to explore whether scholars nevertheless can and should articulate a more significant, conceptually independent role for the consumer expectations test, given that several courts appear determined to retain the test as part of their products liability jurisprudence. Toward that end, this article explores several possible substantive foundations that might be laid for the consumer expectations test. Initially, it locates several points along the tradeoff spectrum between descriptive attractiveness and theoretical tractability, none of which provide a wholly satisfactory response to the challenge of giving content to the consumer expectations doctrine. More promising findings, however, emerge from cognitive and social psychology, behavioral economics, and other social science investigations of human behavior and decision-making. In particular, researchers from those fields have uncovered a wealth of knowledge in recent years concerning the manner in which individuals perceive and process information regarding health and safety dangers. As it turns out, lay individuals frequently comprehend such risks in ways that depart systematically from the approaches that characterize expert decision-making. Although such departures sometimes result from undesirable factual or cognitive errors on the part of individuals, a substantial remaining core of lay risk perception cannot easily be dismissed as irrational or otherwise lacking foundation. This article therefore argues that the consumer expectations test should be redirected toward these important cognitive and behavioral phenomena that are not as readily subsumed within the more analytically rigid risk-utility test. In this manner, the doctrine that refuses to die may yet find a purpose, nearly forty years after its accidental birth.
{"title":"The Expectations of Consumers","authors":"Douglas A. Kysar","doi":"10.2307/3593402","DOIUrl":"https://doi.org/10.2307/3593402","url":null,"abstract":"In 1997, the American Law Institute promulgated the Restatement (Third) of Torts: Products Liability, an ambitious and important project that decisively rejected the consumer expectations doctrine in favor of a risk-utility test for product design defect claims. In the few years following promulgation of the Third Restatement, however, several courts have issued opinions expressing strong judicial allegiance to the consumer expectations doctrine. Indeed, at times they have appeared deeply suspicious of the ALI Restatement project and its recommendation to abandon consumer expectations as an independent test for product design defectiveness. This article examines the disjunction between rhetoric and reality in post-Third Restatement products liability decisions. It aims to demonstrate, first, that the doctrinal framework established by the Third Restatement is in fact an accurate representation of design defectiveness litigation despite the apparent persistence of the consumer expectations test. Second, this article seeks to explore whether scholars nevertheless can and should articulate a more significant, conceptually independent role for the consumer expectations test, given that several courts appear determined to retain the test as part of their products liability jurisprudence. Toward that end, this article explores several possible substantive foundations that might be laid for the consumer expectations test. Initially, it locates several points along the tradeoff spectrum between descriptive attractiveness and theoretical tractability, none of which provide a wholly satisfactory response to the challenge of giving content to the consumer expectations doctrine. More promising findings, however, emerge from cognitive and social psychology, behavioral economics, and other social science investigations of human behavior and decision-making. In particular, researchers from those fields have uncovered a wealth of knowledge in recent years concerning the manner in which individuals perceive and process information regarding health and safety dangers. As it turns out, lay individuals frequently comprehend such risks in ways that depart systematically from the approaches that characterize expert decision-making. Although such departures sometimes result from undesirable factual or cognitive errors on the part of individuals, a substantial remaining core of lay risk perception cannot easily be dismissed as irrational or otherwise lacking foundation. This article therefore argues that the consumer expectations test should be redirected toward these important cognitive and behavioral phenomena that are not as readily subsumed within the more analytically rigid risk-utility test. In this manner, the doctrine that refuses to die may yet find a purpose, nearly forty years after its accidental birth.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1700"},"PeriodicalIF":2.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593402","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69173137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Light from Dead Stars: The Procedural Adequate and Independent State Ground Reconsidered","authors":"K. Roosevelt","doi":"10.2307/3593407","DOIUrl":"https://doi.org/10.2307/3593407","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1888"},"PeriodicalIF":2.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593407","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69173623","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Is Ring Retroactive","authors":"E. Jacobs","doi":"10.2307/3593405","DOIUrl":"https://doi.org/10.2307/3593405","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1805"},"PeriodicalIF":2.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593405","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172873","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Enforcing Great Lakes Water Export Restrictions under the Water Resources Development Act of 1986","authors":"Charles F. Glass join","doi":"10.2307/3593391","DOIUrl":"https://doi.org/10.2307/3593391","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1503"},"PeriodicalIF":2.9,"publicationDate":"2003-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593391","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172933","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Suing the Sovereign's Servant: The Implications of Privatization for the Scope of Foreign Sovereign Immunities","authors":"Abigail Hing Wen","doi":"10.2307/3593392","DOIUrl":"https://doi.org/10.2307/3593392","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1538"},"PeriodicalIF":2.9,"publicationDate":"2003-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593392","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172960","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Comment on Grutter and Gratz v. Bollinger","authors":"L. Bollinger","doi":"10.2307/3593393","DOIUrl":"https://doi.org/10.2307/3593393","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1588"},"PeriodicalIF":2.9,"publicationDate":"2003-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593393","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172993","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
June 22, 2003 was a typically sultry summer day in Austin. The kids were swimming; white clouds with no promise of rain moved slowly across the sky. The sky itself was that bleached-out blue that it gets as summer starts to envelop the hill country and life seems to slow down to match the climate. I was sitting with one colleague watching our kids swim, and we were visiting with a former colleague who was in town connecting with old friends and shepherding his children around to see their friends. We were discussing the cases still pending before the Supreme Court and especially the Michigan cases. We had all listened to the oral arguments and had participated in the drafting of amicus briefs for this organization or that one. We each had our view about how the Court would decide
{"title":"Grutter v. Bollinger/Gratz v. Bollinger: View from a Limestone Ledge","authors":"G. Torres","doi":"10.2307/3593394","DOIUrl":"https://doi.org/10.2307/3593394","url":null,"abstract":"June 22, 2003 was a typically sultry summer day in Austin. The kids were swimming; white clouds with no promise of rain moved slowly across the sky. The sky itself was that bleached-out blue that it gets as summer starts to envelop the hill country and life seems to slow down to match the climate. I was sitting with one colleague watching our kids swim, and we were visiting with a former colleague who was in town connecting with old friends and shepherding his children around to see their friends. We were discussing the cases still pending before the Supreme Court and especially the Michigan cases. We had all listened to the oral arguments and had participated in the drafting of amicus briefs for this organization or that one. We each had our view about how the Court would decide","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1596"},"PeriodicalIF":2.9,"publicationDate":"2003-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593394","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69173010","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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