When All Else Fails: Regulating Risky Products through Tort Litigation

It is the prevailing wisdom among both the legal academy and the general public that the regulatory system is better able to ensure the safety of risky products than the tort system. In this article I argue that this is not always the case. Contrary to sharp criticisms of “regulation by litigation” propounded by leading academics such as Richard Epstein, Richard Reich, and Peter Shuck, tort litigation is sometimes the only way to encourage product safety, at least in settings where manufacturers conceal key information needed to evaluate product safety. Without this litigation, we might still be using products that we know now are exceedingly dangerous