The profession of law is several thousand years old, at least. Given this history, it
is quite natural that tradition would have an important role. This is especially true
in English Common Law, in which precedence has a major influence on judicial
decisions. During the past 100 years or so, product liability has developed as the
basis of tort law when there is a question of harm caused by a product or service,
and thus enjoys the influence of tradition. During much of this time, production
volume was relatively low, claims were low in proportion, and over the years, litigation
involving product liability became relatively straightforward.
Today, production volume can be massive—hundreds of thousands of units
produced and sold annually, with claims increasing in proportion. The result
has been class action suits and large volume manufacturing suits, all continuing
to be prosecuted by product liability, one claim per unit. From an engineering
point of view, this process is inefficient and even ineffective. As seen by engineers,
a far more effective mechanism for litigation would be process liability.
The concept of process liability was first defined by attorney Leonard Miller
(5 New Eng. L. Rev. 163, 1970) in his article, “Air pollution control: An introduction
to process liability and other private actions.” Being unschooled in law,
I do not know the present status of this idea in legal circles, but it is certainly
helpful in forensic analysis and in systems engineering. In this book, process
liability is shown to be a direct result of systems engineering procedures and
methodologies applied to business operations.