Is it possible to write a lengthy article on the safety and other risks posed to consumers by early automobiles, have it reviewed by prominent legal historians, and published in a prestigious legal history journal, without ever considering the issue as to whether cars were more or less safe than the horse and buggies they substituted for? (Aside: one of my great-grandfathers was killed in a horse and buggy accident.) Even if one of the primary cases you focus on involved a defective wheel, an issue that no doubt arose with regard to buggies/carriages as well?
Not only is it possible, it’s been done. The same article manages not to ignore the abundant law and economics scholarship on consumer warranties, but rather to only cite the few L & E scholarship (Logue, Hanson, Croley) who are sympathetic to enterprise liability. Friedrich Kessler, of contracts of adhesion fame, is cited often, but George Priest (among others who have harshly criticized Kessler) is cited not once. As someone who does a lot of work in legal history, this sort of thing frustrates me quite a lot.
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