This Article is about the military contractor defense: the legal doctrine which insulates weapons makers from liability to servicemen for injuries caused by defectively designed weapons. Essentially, the military contractor defense shields weapons makers from state product liability law because of fears that operation of that law will cause the judiciary to trespass into the military sphere. This Article suggests that the military contractor defense constitutes a rejection of the judicial role in regulating procurement. This rejection is an unwarranted step in favor of an overgrown military establishment. The theme of this Article is that military policy is something which is factually, theoretically, and legally separate from weapons manufacture. This Article puts forward the counterproposition that primary responsibility for the design of most weapons systems, in fact, lies with the contractor. Throughout this Article runs the underlying idea that the private enterprise system of weapons procurement in the United States has afforded large opportunities for personal and economic success in order to provide incentives for efficient and innovative production. This Article contains two Parts. Part One presents the military contractor defense in its current doctrinal form and concludes that the military contractor defense can rest only upon a judicial refusal in the name of separation of powers to scrutinize the responsibility for a weapon's design. Part Two examines the United States' procurement system and concludes that determinations of responsibility and accountability subject to judicial review are critical to the nation's reliance on the private market for weapons.
De-Coupling the Military/Industrial Complex - The Liability of Weapons Makers for Injuries to Servicemen,
35 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol35/iss3/4