Why We Have Not Killed All the Lawyers

The Industrial Revolution in the United States spawned vast wealth, manufacturing regions, and an array of commercial processes and products the envy of the rest of the world, as well as customers across the globe. Industrialization brought millions of immigrants to the nation, whose labor fueled the building of the railroads, mammoth construction projects, and operators of factory machinery. At the same time, the new workers, mostly men, were also being injured and killed in countless thousands of industrial accidents, leaving families to become wards of the state. The new legal protections have been characterized as “no fault” in that the fact of the injury is assumed to have been related to the work performed.

Beginning in the early 19th century, injured workers received protection under workers’ compensation laws at the state and federal levels. But consumers were also becoming victims of faultily manufactured products and shoddy construction. While injured workers were a valuable resource to the national need for labor to power the commercial engine and workers’ compensation laws compromised early legal doctrines protecting manufacturers and builders, the ordinary consumer was not a beneficiary of that compromise. In fact, caveat emptor¬†(let the buyer beware) was ingrained in the law and the credo of sellers. The consumer was deemed to be too remote from the manufacturer to be in privity of contract as a basis for liability.

In 1916, the New York Court of Appeals, the state’s highest, ruled in favor, however, of a consumer, a purchaser of an automobile from Buick (Macpherson v. Buick Motor Co.) who had been injured when the wooden wheel of his 1909 automobile collapsed. The wheel was not manufactured by Buick and the auto had been sold to the plaintiff by a dealer. Judge Benjamin Cardozo (a later Supreme Court associate justice) wrote the opinion of the court finding that a manufactured product reasonably expected to be dangerous if negligently made created a liability upon the manufacturer. The case became the genesis of product liability jurisprudence in the United States. The decision essentially produced the creation of public agencies dedicated to the protection of consumers from dangerous medicines, unsafe children’s toys, and infected foods and food products, among others. Product safety and confidence in the commercial market became public policy.

Sometimes the recall of unsafe products was the result of actions by lawyers such as Ralph Nader (author of Unsafe at Any Speed) exposing the vulnerabilities of auto manufacturing in the 1960s and the resulting perils to consumers. For nearly a century since Judge Cardozo’s ruling, consumers and bystanders enjoyed a significant measure of protection from dangerous products, either from government or private action against a wrongdoer or producer of dangerous or faulty products.

In 2005, however, Congress–with the support of President George W. Bush and following a decades-long, aggressive campaign by the NRA–passed the Protection of Lawful Commerce in Arms Act, insulating gun manufacturers from liability for the manufacture or misuse of firearms. The immunity was broadly protective, shielding the industry from nearly all liability lawsuits, leaving families of gun violence victims without recourse to seek damages (see VoxFairfax, April 1, 2019, Let’s Not Kill All the Lawyers, https://voxfairfax.com/2019/04/01/lets-not-kill-all-the-lawyers/).

However, this Bush-era bulwark has now been pierced by some smart lawyers in Connecticut representing parents of Sandy Hook victims. The Supreme Court recently ruled, after 7 years, that Sandy Hook families can proceed to continue their case against Remington under state law provisions, notwithstanding the federal immunity legislation (Remington Arms Co. v. Donna Soto, Administratrix of the Estate of Victoria L. Soto, No. 19-168.)

Gunmakers will no longer be shielded from the effects of their products.

The families argued under Connecticut law that Remington should be held accountable as the maker and promoter of the AR-15-style rifle used in the 2012 school shooting that claimed 26 lives, 20 of them young children. The legal attack proceeded under state laws adopted as consumer protections against misleading advertising. In this case, the plaintiffs cited promotional materials used by Remington that especially appealed to young men to acquire automatic firearms as manly or, in the vernacular, macho.

The lesson is that had we killed all the lawyers, the doctrine of product liability might have received a mortal, if not fatal, wound from the 2005 legislation, but for the skill of counsel. 

Categories: gun control, Issues, National, State

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