“When the U.S. Supreme Court faced a novel tort law issue in 2019 in Air & Liquid Systems Corp. v. DeVries — namely, whether the manufacturer of a “bare-metal” product such as a turbine, blower, or pump has a duty to warn of dangers that arise from the later incorporation of asbestos-laden parts into the product — the Justices turned to first principles from tort theory. In a 6–3 decision, Justice Brett Kavanaugh, drawing heavily from Judge Guido Calabresi’s “cheapest cost avoider” theory, held for the majority that the bare-metal product manufacturer did have a duty to warn, reasoning that “the product manufacturer will often be in a better position than the parts manufacturer to warn of the danger from the integrated product.”
This type of reasoning on the part of the majority is a main target of Professors John Goldberg and Benjamin Zipursky (hereinafter GZ) in their new book, Recognizing Wrongs. Such bald instrumentalism, they argue, reflects the worst kind of “social engineering”
This “bad tort theory” is GZ’s call to arms.