College of Law Faculty Scholarship

Source Publication (e.g., journal title)

Florida Law Review

Document Type


Publication Date

April 2006


This essay directly confronts a key claim underlying calls for tort reform: that current product liability law negatively impacts innovation. It begins by outlining the current state of the product liability/innovation debate, and details the arguments and empirical evidence for and against a negative correlation. The essay then argues that when confronted by potential product liability entrepreneurial companies do not simply patch failed products, they fully rethink and redesign them. As such, product liability can actually spur innovation. The essay also indulges in a discussion of the economist Joseph Schumpeter's entrepreneurial mindset and a Calabresian argument that manufacturers are probably in the best position to innovate and "make lemonade" out of the lemons of design defects. The essay then applies these theories to playground design and argues that product liability law and heightened safety concerns have actually resulted in a quality revolution in public playgrounds. We have eliminated the stark and joyless concrete and steel "traditional" playground in favor of new playgrounds that are not only safer, but vastly superior on every count: more fun, more interactive, and more gauged towards play.

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