A Revisionist History of Products Liability

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law—that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods—is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century.

Courts routinely ignored or rejected privity arguments, and contract was not their paradigm for understanding a producer’s relationship with users of its products. This analysis has implications for how we view the development of the common law today. And it serves as a warning not to rely on potted histories from casebooks in determining what the common law was in the past.