November 20, 2007

Modern "design defect" doctrine invites courts to redesign products, and results can vary wildly depending on how enthusiastically jurists rise to the bait, per this paper by Patterson Belknap's Steven L. Vollins (PDF) for the Washington Legal Foundation (summary via):

Two opinions in New York focusing on the same critical product liability law issue, highlight the starkly different ways that state and federal courts can view their roles in our democracy. The issue in both court cases is whether tobacco products are defectively designed because their producers have failed to create a “safer” cigarette. The state court’s finding that cigarettes are defective, amounts to judicial lawmaking. The federal court, by contrast, correctly applied product liability principles and left it to national policy makers in Congress to determine whether tobacco should remain a lawful product.