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43 U. Rich. L. Rev. 1373 (2008-2009)
Order Cut of Chaos: Products Liability Design-Defect law

handle is hein.journals/urich43 and id is 1383 raw text is: ORDER OUT OF CHAOS: PRODUCTS LIABILITY
Dominick Vetri *
Simple. Elegant. Elusive. Order from chaos. **
Products liability design-defect law appears to be in a state of
disorder. All of the different design-defect tests used by the state
courts' give the appearance of chaos in American products liabili-
ty law. The states have failed to develop a strong consensus on a
legal test for design defects.2 It is, of course, an exaggeration to
say that there are as many different legal tests for design defects
as there are states, but in a world in which products are routinely
shipped in foreign and interstate commerce, there is a need for
more uniformity. Fortunately, appearances are not what they
seem. There is surprising harmony among the states in the proof
requirements to establish a prima facie case of design defect.3 The
treatment of design-defect cases has been remarkably uniform
* Copyright 2008. Kliks Professor of Law, University of Oregon Law School; J.D.,
1964, University of Pennsylvania; B.S.M.E., 1960, New Jersey Institute of Technology.
The author expresses his deep appreciation for the superb research assistance of Universi-
ty of Oregon Law School graduates Christopher Walther, Anne Cohen, Terry Miller, Mi-
chael Stephenson, Caryn Ackerman, and Kim Clark. I also thank Oregon attorney Jona-
than Hoffman, and California attorneys Elizabeth Cabraser, Paul Nelson, Jennifer Pruski,
Michael Reitzell, and Michael Kelly, for their willingness to share their expertise and
knowledge about products liability law. Any errors are, of course, mine.
1. See John F. Vargo, The Emperor's New Clothes: The American Law Institute
Adorns a New Cloth for Section 402A Products Liability Design Defects-A Survey of the
States Reveals a Different Weave, 26 U. MEM. L. REV. 493, app. at 951-55 (1996) (identify-
ing fourteen different design-defect tests used by the states, with ten of the states employ-
ing multiple tests).
2. See id.
3. See infra Part IV.


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