Douglas A. Kysar

Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice

Three prominent interconnected trends - the equation of civic responsibility with consumer spending, the displacement of politically-determined regulatory policies by market-derived environmental, health, and safety standards, and the global integration of product markets - have been joined by a less well-recognized fourth: The struggle for control over consumer access to information regarding the processes by which products come into being. The aim of this Article is to identify and expand on this under-appreciated trend by, first, demonstrating the existence of a conceptual distinction between product-related information (e.g., whether a consumer good threatens to harm its user) and process-related information (e.g., whether a goods production harmed workers, animals, or the environment) as an increasingly prominent effort to resolve policy disputes that involve the entanglement of consumer regulation with broader social or environmental questions; second, showing that this process-product distinction is too thin and formalistic of a conceptual device to address such policy disputes in a stable or satisfying manner; and, finally, arguing more broadly in favor of acknowledging and accommodating consumer process preferences within theoretical frameworks for policy analysis, given the potential significance that such preferences may serve in the future as outlets for public-regarding behavior.

The Expectations of Consumers

In 1997, the American Law Institute promulgated the Restatement (Third) of Torts: Products Liability, an ambitious and important project that decisively rejected the consumer expectations doctrine in favor of a risk-utility test for product design defect claims. In the few years following promulgation of the Third Restatement, however, several courts have issued opinions expressing strong judicial allegiance to the consumer expectations doctrine. Indeed, at times they have appeared deeply suspicious of the ALI Restatement project and its recommendation to abandon consumer expectations as an independent test for product design defectiveness. This article examines the disjunction between rhetoric and reality in post-Third Restatement products liability decisions. It aims to demonstrate, first, that the doctrinal framework established by the Third Restatement is in fact an accurate representation of design defectiveness litigation despite the apparent persistence of the consumer expectations test. Second, this article seeks to explore whether scholars nevertheless can and should articulate a more significant, conceptually independent role for the consumer expectations test, given that several courts appear determined to retain the test as part of their products liability jurisprudence. Toward that end, this article explores several possible substantive foundations that might be laid for the consumer expectations test. Initially, it locates several points along the tradeoff spectrum between descriptive attractiveness and theoretical tractability, none of which provide a wholly satisfactory response to the challenge of giving content to the consumer expectations doctrine. More promising findings, however, emerge from cognitive and social psychology, behavioral economics, and other social science investigations of human behavior and decision-making. In particular, researchers from those fields have uncovered a wealth of knowledge in recent years concerning the manner in which individuals perceive and process information regarding health and safety dangers. As it turns out, lay individuals frequently comprehend such risks in ways that depart systematically from the approaches that characterize expert decision-making. Although such departures sometimes result from undesirable factual or cognitive errors on the part of individuals, a substantial remaining core of lay risk perception cannot easily be dismissed as irrational or otherwise lacking foundation. This article therefore argues that the consumer expectations test should be redirected toward these important cognitive and behavioral phenomena that are not as readily subsumed within the more analytically rigid risk-utility test. In this manner, the doctrine that refuses to die may yet find a purpose, nearly forty years after its accidental birth.

Politics by Other Meanings: A Comment on 'Retaking Rationality Two Years Later'

This paper, prepared as a comment on Dean Richard Reveszs 2010 Frankel Lecture, surveys and evaluates recent developments in the regulatory oversight process, including the incorporation of behavioral economic insights, the development of a uniform federal social cost of carbon measure, and the push for greater transparency and inclusiveness.

Economics of Environmental Law

This two-volume set presents essential articles from both the leading edge of methodological innovation in environmental law and economics and the bedrock of theory upon which all such innovations are built. An impressive collection that is indispensable to policymakers, scholars and those with an interest in the developments in this ever-important field.

Supreme Court ruling is good, bad and ugly

Mondays key US legal decision on emissions regulation was influenced by the unjustified attacks on climate science, says Douglas Kysar.