Toward a Revised Definition of "Product" Under the Restatement (Third) of Torts: Products Liability
David W. Lannetti, 55(2): 799–844 (Feb. 2000)
The application of strict tort liability to new industries and areas of society has proceeded at an unprecedented rate and has led to an explosion of lawsuits, raising the level of liability uncertainty within the business world. Products liability law therefore requires a definition of "product" that recognizes new items that may not qualify as products under current guidance but nevertheless should be governed by existing products liability law, based upon the policy objectives undergirding this field of law. Such a definition also should reconcile any inconsistencies in products liability and sales law by equating products and U.C.C. goods. The American Law Institute recently issued the Restatement (Third) of Torts: Products Liability. The definition of "product" included in the new restatement—although more detailed than that in previous restatements of torts law—is unnecessarily restrictive, is ill-suited for application to emerging technologies, and does little to harmonize products liability and sales law. This Article recommends revisions to the recently approved definition to better restate products liability law while harmonizing it with sales law and, perhaps more importantly, provide flexibility for the continued evolution of this dynamic field of law while staying true to the policy considerations supporting strict liability. The Article reviews the various definitions of "product" that have been used by courts in the context of strict products liability, traces the judicial application of these definitions, discusses the dilemma of creating a bright line of demarcation between products and services in light of emerging technology, analyzes the need to reconcile products liability law with emerging technologies and with sales law, and concludes by offering recommended revisions to the "product" definition to better accommodate the inevitable expansion of strict products liability.
Further Progress in Defining Constitutional Constraints on Punitive Damages and Other Monetary Punishments
George Clemon Freeman, Jr. and Makram B. Jaber, 61(2):517—568 (February 2006)
This article updates an earlier article by Freeman that was published in the February 2002 issue of The Business Lawyer on the status of the United States Supreme Court's rapidly evolving jurisprudence on constitutional constraints on punitive damage awards. Since then, the Court in State Farm Mutual Automobile Ins. Co. v. Campbell reinterpreted and revised the three factors set forth earlier in BMW of N. Am. Inc. v. Gore for determining whether a punitive damages award was "grossly excessive" and therefore constitutionally prohibited. This article describes State Farm's new guidance, examines how lower federal and state courts have responded to it, and suggests possible areas where further guidance by the Court may be needed. The 2002 article also discussed the potential applicability of due process constraints, particularly the requirement of fair notice and the prohibition of "grossly excessive" punishment, to other monetary punishments authorized or imposed by state or federal government. In that broader context this article discusses several opinions dealing with due process challenges to statutory or administrative prohibitions or other limitations on timely judicial review of EPA administrative orders under the Clean Air Act and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).