In the American legal academy, the prevailing wisdom about the rise of modern products liability law is framed by a debate which took place more than thirty years ago. George Priest’s brilliant 1985 paper The Invention of Enterprise Liability, asserted that modern American products liability law in its formative moment was enterprise liability incarnate, but condemned this commitment as itself a profound defect in products liability law. With rhetoric worthy of a Biblical Jeremiad, Priest argued that the “unavoidable implication of the three presuppositions of [enterprise liability] is absolute liability. The presuppositions themselves do not incorporate any conceptual limit to manufacturer liability.” Priest’s work was both immensely influential and sharply contested. Gary Schwartz, writing independently at first, argued that products liability law was really fault liability all along. According to Schwartz, the “vitality of negligence” was the driving force behind the expansion of tort liability over the course of the 20th century. Negligence conceptions lurked beneath product liability law’s surface embrace of strict liability. Or so Schwartz argued. Product defect liability was strict liability in name, but the risk-utility test of product defectiveness was in fact an aggressive application of negligence criteria.
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