Guido Calabresi


What the government and the various states which have also reacted to the product liability "crisis" by passing "codes" have not faced, however, is the fact that the "uncertainties" they would abolish to a large extent only reflect the risks inherent in the manufacture and use of complex and even of simple products. Uncertainty and risk are allocated and occasionally misallocated by the tort system, but they are not caused by it. As a result, the proposed codes may well reallocate or shift the burdens of accident risks and uncertainty, in part or in whole, from the manufacturer (on whom tort law has increasingly placed it) back to the consumer, under the guise of creating standards, but they are unlikely to diminish the actual degree of uncertainty and risk being borne by manufacturers and consumers jointly. They are unlikely to do so unless, of course, they go considerably further and attempt to remove the risk from both manufacturer and user and socialize it, that is, spread it through some kind of governmental insurance program paid out of general revenues.

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