Design Litigation and the State of the Art: Terminology, Practice and Reform

We suggest that rather than ignore these problems, or bemoan them ineffectually, the judiciary should accept the fact that the decision to venture into the area of scientific and technological controversy' carries with it a duty to reconcile the law with the essentials of the scientific method. Some courts already have begun to do so. For instance, suggestions that the manufacturer's obligation to design a safe product necessarily must be limited by the state of the art are common in negligence, warranty and strict liability decisions alike. Unfortunately these statements usually are dicta rather than holdings.

Worse, the authors of the opinions seldom explore the ramifications of their remarks or even define their terms.