This Article contends that “strict liability,” at least as the concept has been used in Massachusetts products liability law, has no independent, widely-understood meaning. It has served mainly as a rhetorical device to express commendable aspirations about consumer protection and for progressive social policy in general. It has, on the other hand, failed to serve as a useful principle for deciding actual cases. Strict liability, understood in its most basic sense as liability without fault, cannot be reconciled with how Massachusetts courts have decided most products liability cases in the modern era, a truth that the Supreme Judicial Court has only recently and fitfully begun to acknowledge. The meaning of strict liability language has to be understood within the factual circumstances of each decision in which it has been invoked. Scholars and products liability practitioners should understand that references to strict liability and its supposed counterpoint, negligence, by Massachusetts courts are really questions, rather than explanations.

Part I of this Article describes the beginnings of the modern era by analyzing the still seminal decisions from the mid-to-late 1970s.This background illuminates and it defines the problems the makers of this new products liability doctrine saw as they began to interpret the new warranty cause of action. Part II of this Article discusses a period during the 1980s and 1990s during which Massachusetts courts, enamored with the idea of strict liability, went off course by producing decisions that were logically inconsistent with each other and with precedent. In short, modern products liability law in Massachusetts became a muddle that did not promote the public policies it ostensibly supported. It was during this period that federal courts in Massachusetts diverged from the state courts they were supposedly following, to the point that they developed a separate and more enlightened doctrine. All of this produced a period of painful confusion, a condition that has not altogether dissipated, even today. Part III treats the most recent part of the modern era, from the Supreme Judicial Court’s 1998 decision in Vassallo v. Baxter Healthcare Corp. to the present, in which Massachusetts courts have backtracked from some of the rhetorical flourishes of the “muddled” period and have begun to define strict liability in more logical, practical terms.

This Article argues that Massachusetts products liability law should worry less about parsing the concepts of “negligence” and “strict liability” and focus more on the fact that current law includes both fault-based and non-fault-based standards.