Alan Calnan

In dicta, courts have had no trouble identifying unreasonable product uses. Indeed, over the years, they have compiled an extensive list of examples. That list includes the following pearls of wisdom. An automobile should not be used as a bulldozer. A shovel should not be used as a doorstop. A hunting and fishing knife should not be used to shave. A knife should not be used as a toothpick. An electric drill should not be used to clean teeth. A power saw should not be used to clip fingernails. A motorized hedge clipper should not be used to trim beards. A lawnmower should not be used to cut logs or pipe. And a radiator should not be used to open a bottled beverage. Curiously, however, courts have never attempted to transform these commonsense observations into clear rules of law. Instead, they have addressed the problem of product misuse in a seemingly random and inconsistent manner. Sometimes misuse eliminates the product seller's duty of care. Other times it negates proof of defectiveness. In many cases it creates an issue of proximate causation. In still others, it raises a question of comparative fault. Too frequently, it is simply disregarded altogether. In the early days of strict products liability, such decisions would have been unthinkable. Originally, strict liability was reserved exclusively for plaintiffs who were injured while putting products to their intended uses. As time passed, however, both the role and the effect of product misuse became clouded. The Restatement (Second) of Torts started the downward spiral. Section 402A made no mention of product use as a factor in determining strict products liability. Although the comments to that section addressed the issue of misuse, these comments were at best ambiguous and at worst potentially inconsistent. Lacking clear guidance from the Restatement Second, courts began to improvise their own unique approaches to the problem of product misuse. As these approaches accumulated, the law of strict products liability became more and more murky. In 1998, the American Law Institute (ALI) had the opportunity to fix the problem. Unfortunately, it declined to do so. In the Restatement (Third) of Torts: Products Liability, the ALI made no attempt to categorize and distinguish product uses. Instead, it adopted a broad foreseeability test for all cases. The Restatement Third also made no effort to clarify how consumer-use issues should be handled. Rather, it allowed courts to choose their own analytical framework and let local law determine the burden of proof. Thus, unless something changes, the current confusion in products liability law is bound to continue. This article seeks to solve this problem by proposing a brand new consumer-use approach to products liability law. Under this approach, courts would categorize products liability cases according to the type of use the plaintiff-consumer made of the product at the time he was injured. The categorization would have both substantive and procedural effects. Criminal or intentionally destructive uses would bar recovery altogether. Reckless or idiosyncratic uses would create a presumption of no-liability. Common ancillary uses would require expert evidence of defectiveness. Intended uses would create a presumption of liability, and intended uses of products violating statutes or regulations would result in absolute liability. By adapting liability schemes to consumer behavior, this five-tiered approach promises not just to clarify the law, but to better serve the Restatement Third`s objectives of efficiency and fairness.

The tort concept of duty lacks integrity in virtually every popular sense of that term. It is at once incomplete, unharmonious and unbeholden to any ethical principle or moral standard. Although these problems are interrelated, each corrupts tort jurisprudence in its own unique way. The incompleteness problem is particularly acute in theories of intentional tort and strict liability, where it is either selectively invoked or completely ignored. While duty holds a more prominent place in negligence, it has been fragmented into myriad specialized obligations which remain mostly in disarray. Such disunity, in turn, has fostered an even greater problem of disharmony, Tort scholars disagree about what duty is and what it is supposed to do. At one extreme, deontologists see duty as a strict moral obligation that judges must adopt and implement in accordance with natural law. At the other extreme, realists view duty merely as a terminological faýade for a judge's unfettered policy decision that liability should or should not exist. Between these opposed camps lie the pragmatists, who conceive of duties as useful guiding principles, but readily recognize a judge's authority to create new rules whenever social circumstances so require. Beneath even this collective dissonance lurks the third integrity issue: the moral problem of principle. Besides the deontological view, which grounds duty in exceedingly strong moral principles, each of the remaining camps fail to give principle its due. Because the realists and pragmatists refuse to commit to any specific set of principles - most especially, liberal-moral principles rooted in American history, law, culture and values - their approaches necessarily lack a unifying standard, and so seem doomed to unpredictability, inconsistency and incoherence. These problems, however, are not intractable. In fact, significant guidance can be found in the work of Ronald Dworkin, whose theory of "law as integrity" provides a methodology for judicial lawmaking and interpretation. Under this theory, judges deciding hard cases must seek to promote liberal values of equality, liberty and due process by interpreting the law in a way that not only squares with past precedent, but also reconciles and strengthens the law's core principles and integrates them into a larger, cohesive framework. Because tort law is largely judge-made, and the "law" part of torts consists primarily of its scheme of duties, Dworkin's approach seems naturally fitted to the law's current duty conundrum. Still, that fit may not be perfect. While Dworkin views history as mostly irrelevant to modern legal interpretation, the history of tort law may well tell us something quite profound about the law's core principles, their connection to the law's present value system and their role in shaping that system's cultural identity. For these reasons, I shall offer a modified Dworkinian theory of tort duty that not only fits and justifies the law's present values, doctrines and structures, but also respects and promotes its historical tradition. Part I begins by briefly examining the role of duty in a liberal state. It then explores common law duties in particular, revealing their developmental patterns and exposing their integrity problems. Part II reviews Dworkin's approach to these problems, explaining his theory of "law as integrity" and highlighting some of the problems in his approach. In Part III, the focus shifts to the concept of duty in tort law. After tracing the historical development of duty in torts, it examines the duty concepts in tort's three modern theories of liability. It finds great integrity in intentional torts, a lost integrity in strict liability and the promise of integrity in negligence. The remainder of the article seeks to fulfill this promise. In Part IV, I examine the history or vertical integrity of negligence's duty concept, exposing several flaws in the modern view. Then, picking up on Dworkin's approach, I explore the horizontal integrity of this concept, identifying in Part V duty's substantive bases and conceptual limits, proposing in Part VI a structured, interpretive analysis, and illustrating in Part VII the application of that analysis in a difficult duty case. Part VIII culminates the discussion by offering a general methodology for handling all negligence duty issues. To put this new metatheory in perspective, the Conclusion highlights its significant features and addresses some of its likely criticisms.

Instrumentalists and deontologists have long battled for an exclusive theory of private law. The instrumentalists have argued that private law is merely a means to achieving any number of political or social ends. Deontologists, by contrast, have contended that the law seeks only the moral end of justice and cannot be used for anything else. In this article, I critique these extreme positions and offer an intermediate theory called "instrumental justice." I show that the absolute instrumental view is elusive, illusory, and illiberal, while the absolute deontological view is incoherent, implausible, and in one critical respect, impossible. Instrumental justice avoids these problems by combining the best elements of both perspectives. This composite theory acknowledges the inherent instrumental nature of private law, but establishes justice as its central, organizing idea. So framed, instrumental justice's primary function is to create rights that serve as tools for marking and mapping important interests, and for defending and vindicating those interests when they are threatened or impaired. Rights, in turn, both imbue the law with the moral credibility necessary to perform secondary social functions, and prevent it from pursuing these functions at the expense of its core principles.