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Harvard Law Review

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In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, “Uneasy,” comes nowhere near to demonstrating what it purports to demonstrate. We also identify various “benefits” provided by tort liability for product-related injuries that Polinsky and Shavell entirely fail to consider. In fact, the case for some form of products liability - whether fault-based or defect-based - is really quite easy.