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Full-Text Articles in Torts
A Fictional Tale Of Unintended Consequences: A Response To Professor Wertheimer, Aaron Twerski, James A. Henderson Jr.
A Fictional Tale Of Unintended Consequences: A Response To Professor Wertheimer, Aaron Twerski, James A. Henderson Jr.
Cornell Law Faculty Publications
No abstract provided.
Consumer Expectations' Last Hope: A Response To Professor Kysar, James A. Henderson Jr., Aaron Twerski
Consumer Expectations' Last Hope: A Response To Professor Kysar, James A. Henderson Jr., Aaron Twerski
Cornell Law Faculty Publications
The authors agree with Professor Kysar that the current version of the consumer expectations test for design defectiveness is an amorphous, unprincipled misreading of section 402A of the Restatement (Second) of Torts. And they agree that most courts apply risk-utility balancing in determining design defectiveness. But they disagree with Kysar's proposal to supplement risk-utility balancing with a reinvigorated consumer expectations test based on expert testimony regarding what consumers actually expect in the way of design safety. Judicial reliance on such testimony would be susceptible to result-oriented manipulation by litigants, would not guide manufacturers in making sensible design choices, would pressure …
Ethics Of Enterprise Liability In Product Design And Marketing Litigation, James A. Henderson Jr.
Ethics Of Enterprise Liability In Product Design And Marketing Litigation, James A. Henderson Jr.
Cornell Law Faculty Publications
American courts talk as though they are imposing strict enterprise liability on product manufacturers, but in truth they do so only with respect to manufacturing defects. In product design and marketing litigation, manufacturers' liability is based on fault. The reason why strict liability is inappropriate for the generic product hazards associated with design and marketing is that, in sharp contrast to manufacturing defects, the conditions necessary for insurance to function are not satisfied. Users and consumers control generic product risks to a sufficiently great extent that any insurance scheme based on strict enterprise liability would be destroyed by combinations of …
Intuition And Technology In Product Design Litigation: An Essay On Proximate Causation, James A. Henderson Jr., Aaron Twerski
Intuition And Technology In Product Design Litigation: An Essay On Proximate Causation, James A. Henderson Jr., Aaron Twerski
Cornell Law Faculty Publications
No abstract provided.
Product Design Liability In Orgeon And The New Restatement, James A. Henderson Jr., Aaron Twerski
Product Design Liability In Orgeon And The New Restatement, James A. Henderson Jr., Aaron Twerski
Cornell Law Faculty Publications
No abstract provided.
What Europe, Japan, And Other Countries Can Learn From The New American Restatement Of Products Liability, James A. Henderson Jr., Aaron Twerski
What Europe, Japan, And Other Countries Can Learn From The New American Restatement Of Products Liability, James A. Henderson Jr., Aaron Twerski
Cornell Law Faculty Publications
No abstract provided.
The Politics Of The Products Liability Restatement, James A. Henderson Jr., Aaron Twerski
The Politics Of The Products Liability Restatement, James A. Henderson Jr., Aaron Twerski
Cornell Law Faculty Publications
No abstract provided.
A Discussion And A Defense Of The Restatement (Third) Of Torts: Products Liability, James A. Henderson Jr.
A Discussion And A Defense Of The Restatement (Third) Of Torts: Products Liability, James A. Henderson Jr.
Cornell Law Faculty Publications
No abstract provided.
Dashing Consumer Hopes: Strict Products Liability And The Demise Of The Consumer Expectations Test, Rebecca Korzec
Dashing Consumer Hopes: Strict Products Liability And The Demise Of The Consumer Expectations Test, Rebecca Korzec
All Faculty Scholarship
The threshold issue in American products liability litigation is whether the product was defective at the time it left the manufacturer's control. Traditionally, courts and scholars define “defect” in three functional categories: manufacturing defects, design defects and marketing defects. American products liability doctrine employs two major tests to determine whether a "defect” exists: the seller-oriented risk-utility test and the buyer-oriented consumer expectations test. The Draft of the Restatement Third of Torts: Products Liability, like some American jurisdictions, rejects the “consumer expectations” test as an independent standard in defective warning and design cases. Ironically, this limitation of the use of the …
Arriving At Reasonable Alternative Design: The Reporters' Travelogue, James A. Henderson Jr., Aaron Twerski
Arriving At Reasonable Alternative Design: The Reporters' Travelogue, James A. Henderson Jr., Aaron Twerski
Cornell Law Faculty Publications
Substantial commentary and controversy have been generated by the requirement in the new Restatement (Third) of Torts: Products Liability that plaintiffs in most (but not all) cases involving claims of defective product design show that a reasonable alternative design was available and that failure to adopt the alternative rendered the defendant's design not reasonably safe. Henderson and Twerski explain the origins of that requirement and show that it is not only the majority position but also comports with widely shared views regarding the proper objectives of our liability system. Although consumer expectations cannot serve as a workable, stand-alone test for …