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Steven P. Croley & Jon D. Hanson, Rescuing the Revolution: The Revived Case for Enterprise Liability, 91 Mich. L. Rev. 683 (1993).

Abstract: By locating classic products liability cases and influential products liability scholars in a matrix defined by these two dimensions, this article illustrates how products liability scholarship and the eventful history of products liability law are best understood - indeed, can be properly understood only - in terms of those two dimensions. In so doing, this article attempts to shed light on products liability at several levels. Close to the surface, this article provides an accessible framework, the Products Liability Matrix, for understanding the rich products liability literature and jurisprudence - a primer both to the current, heated debates in the products liability literature and to products liability law generally. But that largely pedagogic benefit is merely the happy-byproduct of this article's other goals, which include challenging the contemporary wisdom regarding the reasons that, and ways in which, products liability should be reformed. Broadly speaking, the trend in products liability law over recent decades has been to treat products liability cases more and more as tort rather than as contract cases. 22 Yet the bulk of current scholarly wisdom now sees this increased reliance on tort law as harmfully misguided. Indeed, a common theme uniting one of the two main camps of products liability scholars - the contractarians - is that manufacturers should be permitted to contract around standards imposed by products liability law through product disclaimers, warnings, and warranties. This camp of scholars would entrust allocation of consumer product risks largely to contract law. Scholars comprising the other main camp - the regulators - do not share the contractarians' faith that contractual allocations of consumer product risks will yield efficient results, but most nevertheless join the contractarians in advocating a curtailed role for tort law. Those regulators urge that consumer product risks be largely relegated to administrative regulation. Both the contractarians and the regulators have voiced their prescriptions with increasing urgency of late. Judges and legislators, now persuaded that modem products liability law is to blame for the liability insurance crisis and in part for the nation's apparent inability to compete successfully with foreign manufacturers, are taking action. This article reveals fundamental tensions within the arguments and reform proposals of scholars in both camps. Those tensions emerge, in large part, from the fact that products liability scholars have failed to appreciate fully either the significance of, or the relationship between, the mutability dimension and the liability-standard dimension of products liability. In a more constructive vein, this article also makes an affirmative case for a particular products liability regime, a regime that both camps in the current debate strongly oppose: enterprise liability.