The Tort Revolution: Product Liability and the Rule of Courts

Abstract

This dissertation is a history of the changes in tort law, specifically in products liability law, from the fault-based negligence standard to the no-fault strict liability standard. It covers a period from the late nineteenth century through the end of the twentieth century. The historical questions this dissertation seeks to answer are i) what caused the change from negligence to strict liability, ii) who were the historical actors responsible for this change, iii) what was the political character of this change, and iv) what were the political consequences of this change. This dissertation reveals that the revolutionary expansion in product liability law in the states in the 1960s was the product of the Progressive ideologies of state court judges. During the Progressive Era, American legal education responded and adapted to the political climate of the wider society by adopting a new philosophical disposition regarding how the courts should address civil wrongs. The political and ideological responses to the industrialization of the late nineteenth century and early twentieth century resulted in legal academics and practitioners advocating new ideologically oriented theories about how law does and should affect citizens. These theories, known as sociological jurisprudence and legal realism, became popular in American law schools. The law students of the 1920s became the judges and legal academics of the 1950s and 1960s. In the latter decades, Progressive state court judges instituted dramatic, revolutionary changes in the area of law known as torts, particularly products liability law. Products liability law was changed from a fault-based system to an insurance or no-fault system. These politically motivated changes in the courts had the unintended consequence of making a theretofore non-political issue into an inherently political issue, subjecting tort law to the pluralism of the American political system at the state and federal levels. Accordingly, this dissertation contributes to our understanding of the process of legal change, and explores the methods by which social and political changes filter into court decisions.