Product Dynamism and the Law



Citation:

Anita Bernstein (1992) ,"Product Dynamism and the Law", in SV - Meaning, Measure, and Morality of Materialism, eds. Floyd W. Rudmin and Marsha Richins, Provo, UT : Association for Consumer Research, Pages: 113-120.

Meaning, Measure, and Morality of Materialism, 1992      Pages 113-120

PRODUCT DYNAMISM AND THE LAW

Anita Bernstein, Chicago - Kent College of Law, Illinois Institute of Technology

Almost everyone in the academy knows that objects are dynamic, capable of shaping the solves of human beings. Sociologists have described the phenomenon in their theory of symbolic interactionism.[Herbert Blumer, Symbolic Interactionism 2 (1969); G.H. Mead, The Individual and The Social Self, 10-11 (David Miller ed., 1982).] Pragmatic philosophy express" the same insight.[William James, Pragmatism 254, 256-57 (1907).] Although Royd Rudmin once complained that psychology was inattentive to the point, he and others within the discipline have demonstrated it.[Floyd Rudmin, Ownership as Interpersonal Dominance: A History and Three Studies of the Social Psychology of Dominance, Doctoral Thesis, Queen's University, Kingston, Canada; W. Jeffrey Burroughs, David R. Drews & William K. Hallman, Predicting Personality From Personal Possessions: A Self-Presentational Analysis, 6 J. Soc. Behav. & Personality 147 (1991).]  In literature, Nobel laureates describe the influence of objects on the Self. [Jean-Paul Sartre, Being And Nothingness (1943); Saul Bellow, Humboldt's Gift (1993).] Criminology and anthropology have their own examples. [Martin S. Jankowski, Islands in the Street Gangs and American Urban Society 84 (1991) (Dress Code of Street Gangs); Grant Mccracken, Culture and Consumption New Approaches to the Symbolic Character of Consumer Goods and Activities (1988) (Anthropology).] Scholars of business pursue the point through research on consumer behavior. [Marsha Richins and Soon Dawson, a Consumer Values Orientation for Materialism and its Measurement. Scale Development and Validation, J. of Consumer Res. 18 Dec. 1992; Russell E. Belk, Possessions and the Extended Self, 15 J. Consumer Res. 139 (1988).] Theology reveals the power of things in the concepts of sacred objects and Christian communion.

Law, however, lags. In legal doctrine, objects are generally regarded as simple desiderata. [See Robert E. Powell at Al., the Sophisticated User Defense and Liability for Defective Design: the Twain must Meet, 13 J. Prod. Liab. 113, 114 (1991) (*any Product Is Little More than an Inert Object until Some Person Uses It").] Who inherits the items in Uncle's house when he dies intestate? Can Lizzie Eustaoe sell a necklace which might be an heirloom? [See Anthony Trollope, the Eustace Diamonds (1875).] When lightning strikes my car in a commercial garage, must I (the bailor) suffer the loss, or may I expect the owner (the bailee) to repay me? The law does acknowledge that objects occasionally - and to my taste more interestingly - do harm. Dams break and cause floods; dynamite goes off; vicious dogs (are they objects?) bits. Those problems are scattered around different areas of the law: "property," 'torts,' contracts,' "criminal law," "decedents' estates' and elsewhere. The law perceives these events as expressions of conduct. And the problems are unilluminated by the simple insight, known to other disciplines, that objects act a priori, dynamically, as stimuli as well as responses. [See Michael Solomon, the Role of Products as Social Stimuli. A Symbolic Interactionism Perspective, 10 J. Consumer Res. 319 (1983).]

In this paper I discuss product dynamism and the law by uniting some of the areas in which the law looks at objects. Because my specialty is products liability, I focus on that doctrine, and in Part 1, 1 raise the question of why legal doctrine has created a category for products. The answer is that products are unique. I trace the origins of this answer in Part 11, where I review some of the sources of the idea that the object is a source of personhood.

"Objects law" may be found in legal categories other than products liability, and Part III describes some of these instances. The law frequently views products as agents. By analogy to a dangerous animal and other personified wrongdoers, the product became the source of strict liability. After the growth of technology, products came to symbolize power. More recently, symbolism has become evident in the anthropomorphic writing that mourns "lost' products and argues that consumer goods depend on a kindly liability system to remain in existence. Symbolism explains the decision to regard products as dynamic. [For a Rare Judicial Expression of this Point, See Shark V. Daisy-Heddon, 450 A.2d 615, &33 (Pa. 1982) (Larson, J., Dissenting). Judge Larson Referred to the "Invitational Aspect' of a Product and Noted That a Product 'Speaks to Society" Through That Aspect. This Approach "Elevates to Requisite Prominence the Pivotal Interplay Between Product and Users (Society)." /D.]

I conclude in Part IV with some thoughts on the implications of the existence of a law of objects.

1. WHY PRODUCTS LIABILITY?

Injuries involving detective products are brought to the attention of the courts under different labels: sometimes "negligence," sometimes 'strict products liability," sometimes "breach of implied warranty." In the negligence approach, the case begins with a statement of the producer's duty, followed by an inquiry-which relies on the concept of reasonableness--into the breach of that duty, followed by a claim of causation of harm, then damages. Strict products liability is similar, except that in theory it is the product itself, not the breach of duty, that determines liability. The contract or warranty approach focuses on the sale of the product and presumes that the bargain between seller and buyer includes an assurance that the product is fit for an understood purpose, and that the seller will be liable if the product turns out to be unfit.

Negligence (a torts approach) and warranty (a contracts approach) are broad categories that cover much ground other than problems of injurious products. Negligence applies to accidental harm generally: automobile accidents, professional malpractice, careless behavior. Warranty and contract principles focus on commercial transactions, of which the sale of a product is only one. Given the existence of these doctrinal paradigms, then, many people believe that a separate legal category of 'products liability' is superfluous. Before the creation of products liability, the common law provided (in tort and contract theory) a remedy for product injury. Products liability has become a lucrative, prestigious, controversial, and perhaps important field - but to many critics it has no content.

I disagree. I maintain that Products Liability is an independent body of law; and literal meaning lies within its own name. What appears to be a recently-formed specialty is actually an acknowledgment of a separate, enduring category. Here I defend the nomenclature of Products Liability by explaining how American law has isolated a doctrine for the law of defective things. [Thus Products Liability Can Be Distinguished from What Might Be Called "Subdoctrines' - Areas of Law Identified by Subject Matter Only, Rather than Unique Theory. Entertainment Law, Oil and Gas Law, Sports Law and Construction Law Are Examples of Subdoctrines.]

A summary of the more conventional justifications for the existence of products liability may be in order here. These justifications have regarded products as instruments of social policy: the doctrine is usually explained by reference to three 'policy bases." [See Thomas A. Cowan, Some Policy Bases of Strict Products Liability, 17 Stan. L Rev. 1077 (1965); See Also David G. Owen, Rethinking the Policies of Strict Liability, 33 Vand. L. Rev. 681 1980)] Perhaps the most widely-known justification defends products liability as a source of social insurance or consumer protection. This justification is grounded on the absence of a comprehensive compensation scheme in the United States. Because of the absence of social insurance, injuries caused by defective products must be borne either by manufacturers or consumers. And because manufacturers profit from the sale of the product, they can obtain liability insurance, and they can spread the cost of all injuries among all the buyers of the product. Thus it is appropriate for manufacturers to bear the loss for all or most of the injuries caused by the product. [See Escola V. Coca-cola Bottling Co. Of Fresno,  50 P-2d 436, 440 (Cal. 1944) (Traynor, J., Concurring).]

Another justification for the existence of products liability comes from the law-and-economics literature. Economists have suggested that a standard of strict liability for manufacturers of defective products, as opposed to the usual tort standard of negligence - which holds a defendant to the standard of a reasonable person -will give manufacturers the incentive to make their products as safe as possible. The manufacturer is said to be the "cheapest cost avoider' in many circumstances; that is, the person or entity who can anticipate a hazard and avert it without expending too much effort or money. [See Guido Calabresi, the Cost of Accidents (1970).]

Products liability is also explained as a procedural device. Strict liability shifts the burden of proof from the plaintiff to the manufacturer. A plaintiff lacks the information necessary to say exactly how a product was defective: a user does not know how the product was made or whether the manufacturer acted unreasonably. Manufacturers have such knowledge. As applied, products liability serves as a rebuttable presumption of fault on the part of the manufacturer, which tends to bring out the ". [William C. Powers, Jr., Distinguishing Between Products and Services in Strict Liability, 62 N.c. L Rev. 415 (1984); David Griffith, Products Liability-Negligence Presumed. An Evolution, 12 J. Prod. L". 201 (1989).] This justification implies that products liability has no mowing itself as a doctrine.

This burden-of-proof justification has escaped the scathing criticism that the first two justifications have suffered, but I find all three inadequate. As many point out, consumer protection or social insurance cannot manageably be achieved through legal liability. Compensation is not congruent with private law: the best reason for compensation is need, but private law addresses the responsibility of an actor directly, and the suffering of a victim only indirectly. If shifting wealth from powerful corporations to poor victims is the goal, why not compensate victims of illness or other nontortious misfortune by taxing product manufacturers? As for the economics argument about incentives, law-and-economics writers have turned away from strict products liability as a our". [See Richard A. Posner, Strict Liability-a Comment, 2 J. Legal Stud. 205 (1973).] One view, currently in vogue, holds that strict products liability may have resulted in less safety, and more injuries. [See Peter W. Huber, Liability: the Legal Revolution and its Consequences (1988). For an Opposing View, See Joan Claybrook, the Consumer Stake in Product Liability, Toxics L Rep. (Bna) at 1180 (Feb. 20, 1991).] And the burden-of-proof justification, though unattacked, seems petty: a tiny, technical explanation for an enormous American phenomenon.

Hence 'product dynamism." In place of the failed public law vision saw products as the instruments of policy, I propose an inquiry into the nature of products themselves. Their importance, I argue, has been ignored in the law. Products describe societies. Names for the eras of human history - the Paleolithic, Neolithic, Iron, and Bronze Ages, the Industrial Revolution, the Atomic Age -reveal that the objects people could create have summed up entire eons. [See, Mihaly Czikszentmihalyi & Eugene Rochberg-Halton, the Meaning of Things: Domestic Symbols And the Self Ix (1981)]

Looking at objects fills a doctrinal void: A basic omission in the study of products liability is the concept of property. Products are objects, and objects are fundamental constituents of property. Because in practice products liability law seldom raises questions of ownership, it is easy to overlook property law in an attempt to explain the doctrine. The great studies of private property, however, shed light on the subjects of manufacture and use. Theorists such as Locks, who linked labor, creation, and ownership, and Hegel, who connected property with personhood, are important sources of the explanation of products liability.

Products, moreover, play an a priori role as stimuli to behavior. The one-way vectors of tort and contract theory - "A hit B," [See Richard A. Epstein, a Theory of Strict Liability, 2 J. Legal Stijd. 151 (1973).] "A chose product" [See, E.g., Heaton V. Ford Motor Co., 435 P,2d 806 (Or. 1967) (Focus on Consumer Decision to Acquire Product).] "M manipulated C" [See Marshall Shapo, a Representational Theory of Consumer Protection: Doctrine, Function and Legal Liability Thr Product Disappointment, 60 Va. L Rev. 1109 (1974).] - do not begin to describe the network binding consumers, producers, and observers who select, display, encounter, use and sell a product. In this network all things have meanings, and all products are dynamic agents. Within a subject-object dialectic, a person perceives the world around her and interprets that world to herself. Material objects make up a large share of the world perceived: members of a culture create, share, and reinterpret symbolic properties attributed to products. Bemuse of their dynamic function, products participate in social life. They shape identities, and communicate messages to observers.

II. PROPERTY AS A SOURCE OF PERSONHOOD

As a descriptive label, horno fabor unites the contributions of property theory to products liability. Man is the maker and user of objects, and manufacture and use are essential elements of human existence. The concept of homo fabor belongs as much to the domain of property law as it does to the more familiar domains of tort and contract. It is Property that notes the earlier human intentionality, that of the maker, and that grasps the unique influence of things on the formation of a person. Thus an appreciation of products liability law calls for study of the classic justifications of private property.

For centuries philosophers and legal theorists have tried to build a normative case for private ownership. Because property is so important, objects - that is, tangible and moveable property - can be understood to share in that importance. [The Study of Prop" Is of Course Much Wider than the Study of Objects. My Focus on Products Liability in this Paper Precludes a Detailed Examination of Interests in Land, or of Intellectual Property, Although Some Have Argued That Products  Liability Might Be Applied to Those Areas. S", E.g., Malcolm E. Wheeler, the Need for Narrow Tort Reform: Abolishing Strict Product Liability, in Prodouct Liability Reform: Debating the Issues 23, 28-29 (Kenneth L Chilton Ed., 1990) (Discussing Controversy over Houses as Products); Jonathan Mintz, Strict Liability for Commercial Intellect, Cath. L Rev. (Forthcoming 1992) (Arguing That Products Liability Ought to Apply to Intellectual Property); Winter V. G. P. Putnam's Sons, 938 F.2d 1033 (9th Cir. 1991) (Refusing to Apply Products Liability Law to Statements in Book).] In political and legal theory the most famous defense of private property is credited to John Locke, although it had important predecessors. [See Rudmin, Supra Note 3, at 16 (Citing Overton, John of Paris, Fortesue, and Roman Writings as Sources for Locks).] In the Second Treatise of Government Locke justified private property by reference to human labor. "Every man has a property in his own person,' he began, and therefore

[t]he Labour of his body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left in, he has mixed his Labour with, and joyned it to something that is his own, and thereby makes it his properly. [John Locke, Two Treatises of Government, Book 11, Sec. 27, at 328-29 (Peter Lasleft Ed., 1960) (3d Ed. 1698).]

This 'labor theory' rested on the promise that persons have a property right in themselves, especially their own work. When a person mixes his work with a physical thing that is not the property of another, he has a right of ownership in that thing. [The Right Is Qualified by the Famous "Lockean Proviso' - the Individual must Leave "Enough, and as Good" in the State of Nature, So as Not to Defeat the Opportunity of a Later-arriving Person to Acquire Property Through Labor. See Id. At 329.] This right derives from the earlier right, which Locke did not explicitly defend, of the right of property in one's person.

Convincing justifications of private property rely on concepts of personhood. [Professor Epstein Has Defended Private Property on the Modest Grounds of Administrative Convenience, Tradition, and the Absence of Compelling Contrary Visions of How Property Ought to Be Hold. Sea Richard A. Epstein, Possession as Tho Root of Tau, 13 Ga. L Rev. 1221 (1979). Writers in the Libertarian Tradition Defend Private Property Mainly by Objecting to the Coercion Necessary to Change Present Allocations. See Robert Nozick Anarchy, State and Utopia 15&74 (1974); F.a. Hayek, the Constitution of Liberty 87 (1960). Although These Views Are Important and Influential, They Justify Private Prop" Only as Compared to an Alternative Regime.] Aristotle linked private property with moral development, arguing that a man needs leisure and material resources to learn civic-mindedness and friendship. [Aristole, Politics 1253, Reprinted in the Politics of Aristotle Xx (Ernest Barker ed., __).] Following the revival of Aristotle, the fourteenth-century Scholastics defended private property by connecting it to human nature. William of Occam argued that property is a natural human creation based on reason; Marsilius of Padua believed that private property originated in the innate sense of free will in every human being. [See Rudmin, Supra Note 3, at 12-13 (Citations Omitted).]

Denunciations of private property likewise rely on the relationship between property and personhood. To those writers who would refuse to acknowledge private ownership of things, private property corrupted the individual, [See, E.g., Plato, Replublic, Reprinted in the Republic of Plato 4-5 (Benjamin Jowett 2d Ad., 1901). Jean Jacques Rousseau, Rousseau to Narcissus, in the Indispensable Rousseau 48 (John H. Mason Ad., 1979); Charles Avila, Ownership- Early Christian Teaching (1983).] usurped what was really the domain of God, [See St. Augustine, Sermo L, I Pl38:242 (Avila 115).] betrayed a communical ideal. [See Rudmin, Supra Note 3, at 4 (Quoting "All Is Common among Friends," a Slogan of the School of Pythagoras).] or oppressed those who lacked such private property.[See Karl Marx & Fredrich Engels, Manifesto of the Communist Party 118481, in Marx & Engels: Basic Writings in Politics and Philosophy 1, 21 (Lewis S. Feuer Ad., 1959).] Other theorists of property such as Hobbes and Hume did not seek to abolish or defend private property but insisted that understanding property required an understanding of human desires and impulses.[See Rudmin, Supra Note 3, at 14-16.] Tangible property is thus connected to personhood. The right to own property necessarily follows from the promise that persons own themselves. [As Floyd Rudmin Has Pointed Out, the Centrality of Personhood in Explanations of Property Means That Property Is an Important Constituent of Psychology - and Therefore Philosophical Justifications of Private Property Contribute to the Literature of Psychology as Well as Political Theory. See Id. Passim, and at 16.]

Perhaps the most adamant insistence on the relationship between prop" and the individual psyche appears in the works of Hegel, especially The Philosophy of Right, where Hegel declares that there can be no personhood without property: "If emphasis is placed on my needs, then the possession of property appears a means to their satisfaction, but the true position is that, from the standpoint of freedom, property is the first embodiment of freedom and so is itself a substantive end.[Georg Wilhelm Fredrich Hegel, Grundlinien Der]Philosophie Des Reckts (The Philosophy of Right),]Para. 45, at 42 (T.m. Knox Trans., 1952).] This stance is directly contrary to the conventional views of products liability. The-product-as-inert-object approach [See Powell at Al., Supra Note 7, at 114.] presumes that 'emphasis is placed" on the needs of an individual, with products deployed to fill those needs. For Hegel this approach fails to begin at the beginning. Without a relationship to property, the individual is not a person, and cannot have the needs of a person. Human will is embedded in things, and things are embedded in human will.[See Hegel, Supra Note 35, Para. 45, at 42.]

Current understandings of property law have bon~ from application of the Hegelian connection between objects and personhood. One important application is a distinction that Margaret Jane Radin has proposed, between property integral to personhood and property hold instrumentally or for investment, with prop" integral to personhood warranting stronger protection in the law. [See Margaret Jane Radin, Market-inalienability, 100 Harv. L Rev. 957 (1982); Margaret Jane Radin, Property and Personhood, 34 Stan. L Rev. 957 (1982) (Hereinafter Radin, Personhood]. This Distinction Has Important Applications to Doctrine. For Example, as Radin Points out in Another Article, Residential Rent Control Could Be Defended as Protecting Property Integral to Personhood (A Home) at the Expense of Property Hold Instrumentally. See Margaret Jane Radin, Residential Rent Control, 15 Phil. & Pub. Aff. 350 (1986). A Distinction of this Kind May Explain in Part the Defeat of Constitutional Challenges to Rent Control. See Yee V. City of Escondido, - U.s. -, 112 S. Ct. 1522, 1529 (1992); Pennell V. City of San Jose, 485 U.s. 1, 14 (1988).] In contrast, I offer a more tentative and descriptive inference: Because property is integral to personhood, the law of injurious objects has evolved and retains conceptual appeal.

When a person combines her labor with an object, more occurs than a simple justification for ownership. According to Locks, the object changes. The person changes too: she feels different; she is entitled to feel different. For Hegel these changes are inevitable elements of human life. [See Radin, Personhood, Supra Note 38, at 977. ('The Notion That the Will Is Embodied in Things Suggests That the Entity We Know as a Person Cannot Come to Exist Without Both Differentiating Itself from the Physical Environment and Yet Maintaining Relationships with Portions of That Environment.").] To presume that these changes are entirely for the good is to read into property theory a message that its authors did not write. Objects carry both benefit and detriment. The law of beneficial personalty is expressed in traditional property topics such as bailment, conversion, and decedents' estates; the law of detrimental personalty includes products liability.

III. THE LAW OF PRODUCT DYNAMISM

Once understood as a source of personhood, the object may be seen as autonomous and dynamic. A vast literature, following Locke and Hegel, expounds this point. The early writings of Karl Marx are crucial to the understanding of the dynamic powers of products. The famous concept of alienation, for instance, expresses the transfer of vitality and freedom from the worker into the object he produces.[Karl Marx, Economic and Political Manuscripts (1844], in Karl Marx: Early Writings 347 (1975). 41.] Whereas his predecessor, the artisan, had the right and duty to control his own labor, the proletarian does work that is dictated by the nature of the product. He loses his freedom in the demands of his labor; he sells his waking hours so that he may buy other products. [Bertell Ollmann, Alienation: Marx's Conception of Man in Capitalist Society 14245 (1972).] Out of 'fetishism' he perceives powers to be vital beings in their own right. [1 Karl Marx, Capital 72-74, Quoted in Shlomo Avineri, the Social and Political Thought of Karl Marx (1968).]

In the twentieth century, sociologists writing in the tradition of symbolic interactionism continued to explore the theme of object dynamism.[See Mm, Supra Note 2; Charles Horton Cooley, Human Nature and the Social Order (2d Ed. 1902).] Although not "Marxists" (in the sense of historical determinism), the" writers posited a world where individuals perceived symbolic messages in the world around them. Objects are stimuli as well as responses to needs. The self, a realm of continual emergence, changes shape in response to the communication of objects.

The autonomous existence of objects recognized by Marx and the symoblic interactionists is reflected in liability doctrine. Revealing metaphors attribute vital properties to objects. Although these metaphors ultimately do not relieve human beings of responsibility - bemuse their users acknowledge the connection between things and human choices - they help to explain the development, and persistence, of a unique legal doctrine for products.

A. The Object" Wrongdoer

The term fait do /a chose, approved by the courts in France in 1897,[Hessel E. Yntema, 777@ Law of Obligations, in Civil Law in the Modern Worm 58, 69-70 (Athanassios N. Yiannopoulos Ed., 1965); See Also Code Civil [C. Civ.] Art. 1384 (Fr.).] acknowledges figuratively that there can be an 'act of the thing," for which the civil liability system might blame on any of several human beings .[The Gardien Do La Structure, or Keeper of the Internal Dynamism, Is Generally the Producer of a Manufactured Product; the Gardien du Comportement Is an Owner, Keeper or Operator. See Stephane Grueer-magrrot, L'action du Consummateur Contre Le Fabricant D'un Objet Affecte Par Un Vice Cache 98-99 (1978).] From fait do la chose a variation of strict products liability has evolved in France, Belgium and Luxembourg.[See Frank A. Orban, 111, Product Liability. A Comparative Legal Restatement Foreign National Law and the EEC Directive, 8 Ga. J. Int'l & Comp. L 343, 349-50 (1978).] The idea of the act of a thing exists also in American products liability doctrine and its English antecedents.

For example, many subconcepts of products liability law isolate products as distinct from human beings and the corporations that employ them. Statutes of repose, waning in the United States because of constitutional infirmities, posit a radical separation between product and maker. After a period of years, statutes of repose disconnect products from their manufacturers by terminating the attribution of defect to the producer.[See, E.g., Cornett V. Gromann Service Company - Retail, 590 N.e.2d 1013 (111. App. Ct. 1992); Ferguson V. Modern Farm Sys., Inc., 555 N.e.2d 1379 (Ind. App. 1990).] This severance acknowledges that although a defective product may cause harm, the passage of years gathers all of this responsibility into the product itself (or onto another person) and away from the manufacturer. Similarly, some jurisdictions impose liability on successor corporations based on continuity via a product line, rather than continuity of individual human wrongdoers employed by a corporation.[The Leading Article on Continuity-of-enterprise Liability Is Jerry J. Phillips, Product Line Continuity and Successor Corporations, 58 N.y.u. L Rev. 906 (1983), and the Leading Case Is Ray V. Alad Corp., 500 P.2d ' 3 (Cal. 1977). State Courts Are Divided on the Question. See Nissan Corp. V. Miller, 594 A-2d 564 (Md. Ct. Spec. App. 1991).] The theory behind breach of warranty avoids reference to manufacturer misconduct: it is the thing itself that must be merchantable or fit for a purpose, with lift room for excuses. These doctrines are conventionally explained in terms of policy, not illustrations of the product as wrongdoer, but their focus on the object itself rather than individual or aggregate human conduct echoes fait do la chose.

The notion of the product as wrongdoer illuminates case law that purports to reconcile the strict liability approach used in products liability with 'fault," the model of liability used in most other areas of torts. Courts have questioned whether strict products liability can accommodate other tort concepts, such as punitive dama as or comparative negligence, that depend on fault.[See Jackson V. Johns-Manville Corp., 781 F.2d 394 (5th Cir.), Cert. Denied, 478 U.s. 1022 (1986) (Punitive Damages); Daly V. General Motors Corp., 675 P.2d 1162 (Cal. 1978) (Comparative Negligence).] In tort doctrine, strict liability and fault stand for opposite approaches. Products liability, however, is a type of strict liability that finds a kind of fault in the harm caused by a product. It a product really were an "inert object,"[See Powell, Supra Note 7, at 114.] then it could not be a wrongdoer, and questions of damages and defenses would pose genuine conceptual trouble. Courts seem to find the issues easy, however, and have almost unanimously allowed fault-based remedies and defenses in products liability actions. [About Half the States Formally Apply Comparative Fault to Products Liability. Soo Vicmr E. Sckwartz, Comparatrve Negugence Soc. 12.2 (2d Ed. 1986). Even Without Formal Sanction of the Defense, Though, the Reasonableness of Plaintiff's Conduct Is Everywhere Taken into Account.]

Fait do /a chose derives from principles of liability for harms caused by animals.[See Yntema, Supra Note 44, at 69-70; See Also Anita Bornstein, L'harmonie Dissonante: Strict Products Liability Attempted in the European Community 31 Va. J. Int'l L 673, 697-99 (1991).] The idea that nonhuman actors could be causal agents made French courts receptive to the idea that a thing too could act. English and American courts did not make this connection expressly, but modern products liability law, being "strict,' traces its lineage to this older form of strict liability.

Animals and products occupy a unique place in an account of causation of harm. Semi-autonomous, they cause injury only derivatively, and what they "do' is a manifestation of a human omission or act. Their connection to human conduct must be acknowledged, for both corrective-justice reasons of attributing responsibility and for the policy of compensating a victim. But the incompleteness of that connection is expressed lexically in the term strict liability, implying that in one sense the person-defendant was not at fault.

Illustrations of this point may be found in ancient legal codes. Mosaic law provided a death penalty -stoning - for the ox that gored a man or a woman, causing the person's death.[See Exodus 21:28.] If the owner knew of the propensity of the ox to gore, and did not keep the animal restrained, the owner also faced a death penalty when the ox caused the death of a human being.[Exodus 21:29. The Code of Hammurabi Was More Lenient: If a Man's Ox Wore Known to Gore, and He Had Been Notified That it Was a Gorer, and He Have Not Wound up its Horns, and Have Not Shut it Up, and the Ox Gored a Froo-bom Man, and Kill Him, He Shall Pay One-half Mina of Silver.] Again human conduct is linked with, but also separated from, the errant activity of the nonhuman wrongdoer. As in modern strict liability the owner of the injuring animal (like the manufacturer of a product) cannot escape responsibility even when the victim does not prove fault; yet the defendant's conduct is pertinent, increasing or decreasing his culpability for the injury. The Biblical rule parallels the modern doctrine that a manufacturer is strictly liable for harms caused or occasioned by its product, and can be liable additionally (under a separate count of negligence, or for punitive damages) if the plaintiff can prove fault.

That inanimate objects can be wrongdoers is not an unfamiliar concept in medieval law, which provided occasionally for their punishment:

Probably to the primitive mind the ox that gored a man, the sword that slow, and the murder that wielded it were much more on one level than they can be to us. The animal or tool, if not conscious themselves, might be endued with a magic power or possessed with an evil spirit. It was well to got rid of them before they did more harm. [The Code of Hammurabi No. 251, Reprinted in Formative Influences of Legal Development (Albert Kocourok & John Wigmore Eds., 1979) [Hereinafter Formative Influences].][Richard R. Cherry, the Growth of the Criminal Law in Ancient Communities, Reprinted in Formative Influences, Supra Note 41, at 143.]

The English law of deodands, a topic that Oliver Wendell Holmes regarded as essential, attributed blame to an object that was the direct agent of a person's death.[See Oliver W. Holmes, the Common Law 24-25 (1896).]Under the law of deodands, the value of the harm-causing object was assessed, and this amount was payable to the Crown.[See Jacob J. Finkelstein, the Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongfui Death and the Western Notion of Sovereignty, 46 Temp. L.q. 169, 185 (1973).] Holmes gave the example of the wheel of a cart as a thing that could be viewed as the agent of a man's death, and forfeited.[See Holmes, Supra Note 56, at 25.] A tree that foil and killed a person was to be "executed, its corpse delivered to the person's kinsmen to chop up and put to revengeful and beneficial use at the hearth." [Christopher J. Stone, Should Trees Have Standing Revisited: How Far Will Law and Morals Reach? A Pluralist Perspective, 59 S. Cal. L Rev. 1, 38 (1985). Professor Stone's Thesis Is Probably the Best-known Precedent in Legal Scholarship for My Animist Argument. See Christopher J. Stone, Should Trees Have Standing? (1975).]

To some writers, notably Justice Brennan, modem forfeiture law derives from deodands. [See Calero-Toledo V. Pearson Yacht Leasing Co., 416 U.s. 663, 681 N.17 (1974).] whether this association is correct as a matter of history is disputed,[See Tamara R. Piety, Comment, Scorched Earth: How the Expansion of Civil Forfeiture Doctrine Has Laid Waste to Due Process, 45 U. Miami L. Rev. 911, 919 N.36 (1991).] but forfeiture shares the theme of personification of objects. For example, the doctrine of admiralty forfeiture has historically insisted that a ship has a distinct personification. [In Two Nineteenth-century Admiralty Cases, Justice Story Upheld in Rem Actions Against Ships Where Actions Against Persons Did Not Lie. See the Palmyra, 25 U.s. (12 Wheat.) 1 (1827) (Permitting in Rem Action Against Ship Where No in Personam Action Possible); United States V. Brig Malok Adhol, 43 U.s. (2 How.) 210 (1844) (Ship Forfeitable for Captain's Going Insane and Firing on Other Ships Where Neither Captain Nor Ship's Owners Not Responsible for His Actions). "The Vessel," Story Wrote, "Is Treated as the Offender, as the Guilty Instrument or Thing to Which the Forfeiture Attaches. . ." Brig Malok Adhel, 48 U.s. at 233.]Current statutory law requires the forfeiture of boats involved in the violation of customs laws.[19 U.s.c. Sacs. 1594, 1595a (1988).]

Like modern products liability law, deodands and its progeny have been attacked as preposterous fictions, devised with a cynical purpose in mind.[According to Some Abolitionist Writing about Products Liability, Summarized Above, Products Liability as a Separate Doctrine Exists to Perpetuate a Livelihood for Lawyers; it Makes No Conceptual Sense. In a Similar Attack, Blackstone Described Deodands as a Crude Superstition That the English Government Invoked to Tax its Subjects. 1 William Blackstone, Commentaries *300.] Deodands is of course as obsolete as a legal notion can be; and strict products liability may follow it to oblivion. The idea of animation behind both concepts, however, continues to resonate.[See, E.g., Albert W. Alschuler, Ancient Law and the Punishment of Corporations: of Frankpledge and Deodand, 71 B.u. L Rev. 307 (1991) (Applying Ancient Legal Concepts of Personification to the Problem of Corporate Criminal Liability).] And as the legal historians Pollack and Maitland have suggested, it will endure as long as human beings feel impelled to curse the chairs over which they stumble.[See Frederik Pollack & Frederic Willam Maitland, a History of English Law 274 (2d. Ed. 1989g).]

B. Grieving for Lost Products

Using the metaphors of banishment, abandonment, and loss,[See Peter W. Huber, Safety and the Second Best. The Hazards of Public Risk Management in the Courts, 85 Colum. L Rev. 277, 309-14 (1985); Man C. Maloo & Benjamin A. Neil, Products Liability Exposure: the Sacrifice of American Innovation, 13 J. Prod. Lab. 361, 362-63 (1991).] some writers who study products liability demonstrate their belief that products are animated by a kind of life force. Manufacturers routinely and unsentimentally withdraw or decline to market products irrespective of liability considerations,[See, E.g., Lawrence M. Fisher, Plug Is Pulled on Heathkits, Ending a Do-it-yourself Era, N.y. Times, March 30, 1992, at Al (Removal Due to Sales Decline and Loss in Market Advantages).]yet the cessation of a line of goods because of liability concerns can provoke expressions of bereavement. The difference between products withdrawn for reasons not based on liability, and products 'driven from the market [Joseph A. Page, Genetic Product Risks: the Case Against Comment K and for Strict Product Liability, 58 N.y.u. L Rev. A53, 878 (1983).]  appears to parallel the difference between natural death and death by violence. Bad things, products liability reform proponents appear to argue, happen to good products because of liability.[According to One Business-sponsored Survey of Manufacturing Executives, 47 Percent of American Manufacturers Have Withdrawn Products from the Market, and 25 Percent Have Reduced Research, Because of Liability Concerns. See E. Patrick Mcguire, the Impact of Product Liability (Conference Bd. Rep. No. 908, 1987).]

Liability, according to those who grieve, eliminates products from the market in at least three ways: by obstructing innovation that would otherwise bring new technologies to the fore, by militating against the marketing of a now product, and by causing managers to decide to cease manufacture of a product.[A Conference at the Brookings Institution Produced the Liability Maze, a Collection of Papers assembled to Demonstrate the Proposition That Liability Harms Innovation and Prevents Valuable Products from Reaching the Market. See the Liability Maze: the Impact of Libility Law on Safety and Innovation (Peter W. Huber & Robert E. Litan Eds., 1991).]

The first category, products never made because of the decline in innovation, is dominated by contraceptives (little research into new technologies is now taking place) and, in general, any product to be used mainly by younger persons. It also features vaccines and general aviation. The second, products created but not marketed, includes miscellany such as now vaccines,[In a Well-publicized 1991 Speech, Vice President Dan Quayle Told an Audience of Lawyers That the American Liability System Discouraged the Marketing of Useful and Desired Products. Vice President Dan Quayle, Address at the Aba Annual Convention (Aug. 13, 1991).][See Huber, Supra Note 67, at 289-90.] a drug called Ocullnum,[I Have Argued That the Case for Tort Reform Requires Proponents to Demonstrate That Reform Offers Benefits That Extend Beyond the Business Interests Who Began the Movement. See Anita Bernstein, a Theory of Products Liability Reform (Forthcoming 1992). Cf. Richard W. Wright, Allocating Liability among Multiple Responsible Causes: a Principled Defense of Joint and Several Liability for Actual Harm and Risk Exposure, 21 U.c. Davis L Rev. 1141, 1154 N.45 (1988) (Enlistment of Municipalities in Tort Reform Effort). This Need May Explain the Proliferation of Lost-product Arguments: When a Consumer Can No Longer Buy a Desired Product at Any Price, the Injury Seems Worse than the Burden of Increased Prices or Decreased Competitiveness.][See Note, a Question of Competence: the Judicial Role in the Regulation of Pharmaceuticals, 103 Rmw. L Rev. 773, 774 (1991).] a substitute for asbestos,[See Richard J. Mahoney, Time to Unshackle U.s. Competitive Strengths, Sci. Am., May 1990, at 136. ] and a child so" rail.[An Inventor Has Patented a Child Safety Rail, Designed to Help Small Children Learn to Climb Stairs. It Fits onto an Existing Railing. Manufacturers, Some of Whom Have Cited Liability Concerns, Refused to Market this Product. See Evelyn Gilbert, Product Liability Woes Keep Juvenile Products off Market, Nat'l Underwriter Co. Rep., Mar. 11, 1991.] The third category, products withdrawn because of liability, has received the most attention. In martyrdom are Bendectin, the morning sickness drug;[See Virginia Postrel, Implants: Medicine, Feminism & Freedom, Wash. Post, Jan. 26, 1992, at C1 (Noting That Even Though No Connection Between Bendectin and Birth Defects Has Been Proven, $100 Million Cost of Defending Lawsuits Made it Too Expensive to Continue Marketing the Product).] CU-7, the intrauterine device that Searle withdrew;[See W. Kip Viscusi & Michael J. Moore, Rationalizing the Relationship Between Product Liability and Innovation, in Court Law in the Public Interest. Competition, Innovation, and Consumer Welfare 105, 112 (Peter Schuck Ed., 1991).] the CJ-5 and CJ-7 model Jeeps once made by American Motors;[Kevin Klose, a U.s. Era Ends: Last Jeep Is Built - It's Taps for Popular World War /I Vehicle, Wash. Post, Jan. 29, 1986, at A3.] the Puritan-Bennett anesthesia gas machine.[See Michael Brody, the Explosion of Lawsuits - and the Cost of Insuring Against Them - Is Forcing Managers to React, Fortune, Mar. 3, 1986, at 20; Dan Quayle, Now Is the Rime for Product Liability Reform, Daily Exec. Rep. (BNA) No. 59 (Mar. 27, 1990).] Writers have also identified imperiled products: spermicide used for barrier contraception, motorcycles, and tranquilizers such as Prozac, for examples.[See Barry Epstein & Marc Klein, Keeping 'Junk Science 'Out of the Courtroom, 129 N.j. Lj. 190 (1991) (Contraceptive Spermicides); Peter Huber, Junk Science in the Courtroom, Forbes, July 8, 1991, at 68 (Spermicides and Prozac, among Others); Richard Price, Helmet Law Jolts Motorcyclists, Usa Today, Dec. 31, 1991, at 3a (Litigation Fears Cause Endorsement of Helmet Requirements by Manufacturers, Which Causes Plunge in Motorcycle Sales); Joseph Kelner & Robert S. Kelner, Motorcycle Cases, 166 N.y. L.j. 3 (1990); Larry Black, Legal Threats Scare off U.s. Manufacturers, the Independent (London), Mar. 22, 1992, at 3 (Prozac); Tracy Schrath, Lilly Counsel Keeps Taking Hard Line on Prozac, the Recorder (New Jersey), Dec. 12, 1991, at 3 (Prozac).]

A complement to grieving over lost products has been agreement that some products should be banished. Even those who are habitual lamenters have agreed that certain consumer items deserved to have gone to products-liability hell.[See, E.g., Huber, Supra Note 17, at 162 (1988) (Approving of Loss of Dalkon Shield). Unlamented Products Lost to Liability Include the Corvair, the Pinto, Thallidomide, Procter & Gamble's Rely Tampon, the Firestone 500 Tire, Three-wheeled All-terrain Vehicles for Children, the Bork-Shiley Heart Valve, and Hot-water Vaporizers. See Tom Christoffel, the Role of Law in Reducing Injury, 17 L-aw, Med. & Health Care 7, 12 (1989); Claybrook, Supra Note 17, at 1180 (Feb. 20, 1991).] Another consensus endorses the execution of products after due process of law: the 'voluntary" recalls of the U.S. Consumer Product Safety Commission are widely approved. This personification is crude and bipolar - products are either good or bad.

IV. IMPLICATIONS

I have argued that unknown to itself, the law includes a separate doctrine for objects. Products liability is not merely accident law or the law of sellers' promises. 'Objects law' goes beyond products liability, however. The traditional legal category of personalty may now be seen as beneficial-objects law. Detrimental objects law includes products liability, the liability rules for dangerous animals, the historical concept of deodands, and the law of forfeiture - topics generally regarded as disparate.

Two assumptions prevalent in American law must be jettisoned. The first is that some person's desire to encounter a product always precedes the encounter with the product. This assumption of conscious, rational conduct is fundamental to explanations of products liability, especially those that derive from economics. Yet as Marx, the symbolic interactionists, and others have taught, products are stimuli as well as responses. The second assumption is that products by and large are good things, except for the dangerous ones, which are bad things. Therefore the law ought to favor the continued existence of products unless they are dangerous: to paraphrase the point in jargon, products deserve protection union their risk outweighs their utility.[See John Wads, on the Nature of S&kt Liability for Products, 44 Miss. Lj. 825 (1973).] In earlier years American courts emphasized the badness of dangerous products;[See Macpherson V. Buick Motor Co., 111 N.e. 1050 (N.y. 1916); Greenman V. Yuba Power Products Co., 377 P.2d 897 (Cal. 1963).] a current trend in the courts seeks protection of "innovation" and product development. [See Teresa Moran Schwartz, Product Liability Reform by the Judiciary, 27 Gonzaga L Rev. 303, 324-30 (1991-92).] This black/white view is simplistic. Products bring both detriment and benefit to the complex world in which they live.

Objects law must become another area of legal thought that advances with the help of other disciplines. Lawyers are still reluctant to surrender their notion of law as an "autonomous discipline,[Richard A. Posner, the Decline of Law as an Autonomous Discipline, 1962-1987, 100 Harv. L Rev. 761 (1987).] even though antitrust has married itself to economics; criminal law relies on psychiatry to explain its concept of awns tea and diminished capacity; tax law works with economics and political science; professional malpractice cases (except for those involving attorneys) cannot proceed without the expert testimony of other professionals; evidence needs epistemology and psychology; scientists must tell courts that creationism is not science - and on and on. The influences on objects law are varied. Beginning to acknowledge them would make the law more intelligible.

----------------------------------------

Authors

Anita Bernstein, Chicago - Kent College of Law, Illinois Institute of Technology



Volume

SV - Meaning, Measure, and Morality of Materialism | 1992



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