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Right Approach, Wrong Implications: A Critique of McKean on Products Liability (with Kenneth C. Bass, III), 38 University of Chicago Law Review 74 (1970)


I have very little argument with the basic framework which Professor McKean presents. Indeed, if one allows for the limitations on the detail possible in a paper, the framework in many respects closely parallels parts of the framework which I have been using independently and which is partially set out in an article in the Journal of Law and Contemporary Problems and more fully in a recent book.

The problems I have are more with the conclusions toward which Professor McKean tends. I say tends because at many points he makes clear that different goals would justify different results, and that, even accepting the goal of economic efficiency, one can "logically" defend systems of liability different from those which he seems to prefer. Yet once he has said this it seems quite clear that he believes that, to the extent economic efficiency is the goal, a system of consumer liability is likely to be best, except where producer fault or something which he feels is close to it can be shown.

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