Professor Robert Pushaw, "The Original Understanding of Strict Products Liability" -- Yale Journal on Regulation

Professor Robert J. Pushaw's article, The Original Understanding of Strict Products Liability, (SSRN) is published in the Yale Journal on Regulation, 2 Yale J. On Reg. 1177 (2025). The article examines professor George Priest's historical analysis of strict produts liability for injuries caused by defective products.

Abstract of The Original Understanding of Strict Products Liability

In the 1980s, George Priest published two seminal articles on the intellectual history of strict liability for injuries caused by defective products. First, he demonstrated that the states’ remarkably quick acceptance of such liability starting in the mid-1960s reflected the consensus among prominent legal thinkers of the wisdom of “enterprise liability” theory, which had been developed over the previous three decades primarily by Fleming James, Friedrich Kessler, and William Prosser. This theory proposed that commercial enterprises should be liable to consumers who suffered product-related injuries in order to internalize accident costs to manufacturers and sellers, equitably allocate the risks of such accidents, and protect the public. Second, Professor Priest argued that the “founders” of Section 402A of the Restatement (Second) of Torts (1964), which established strict liability for harms caused by “any product in a defective condition unreasonably dangerous” to a consumer, intended merely to streamline recovery for manufacturing defects. Accordingly, Section 402A’s drafters did not foresee that courts would dramatically enlarge its scope to include design and warning defects. Scholars have generally agreed that Professor Priest presented the definitive intellectual history of strict products liability. Nonetheless, various commentators have contended that he (1) overemphasized the impact of James, Kessler, and Prosser; (2) paid insufficient attention to larger political, social, and economic movements that influenced the development of strict liability; (3) did not adequately account for the role of lawyers (as contrasted with scholars and judges) in swiftly implementing such liability; (4) wrongly concluded that Section 402A’s founders intended to limit its application to manufacturing defects; and (5) exaggerated the impact of enterprise liability on tort law developments after 1964. I will try to show that these critics have failed to refute Priest’s historical analysis of strict products liability.