The Case Against Strict Liability

Professor Schwartz identifies the foundational assumptions of strict products liability law, and argues that these assumptions are either false, not supportive of banishing free contract, or not proven on the current evidence. After showing that, on the evidence now available, strict liability cannot be shown to be more efficient than free contract, Professor Schwartz argues that the choice among legal regimes should be made by a "representative consumer"--a person who knows what is knowable about markets and who knows that he lives in a liberal state, but who does not know what position he will occupy in that state. Professor Schwartz concludes by demonstrating that such a wonsumer would choose a free-contract regime complemented by required disclosure.