How Safe Is Safe Enough? Analyzing the Incentive Structure of the Products Liability Scheme on Commercial Aviation Manufacturers

How do aviation manufacturers work to prevent tragedy? After tragedy strikes, how does the legal system’s imposition of a remedy change the operations and decision-making of these manufacturers, if at all? This Note explores whether the current products liability framework effectively achieves the goals of tort law—including whether it deters unsafe innovation in the high-risk commercial aviation manufacturing industry. The Note explores these topics through the lens of the recent Boeing 737 Max disasters of 2018 and 2019, using such disasters to exemplify the skewed incentive structure that manufacturers face in the modern products liability tort system. This Note argues that the current tort system does not adequately deter manufacturers from innovating their products in a way that sacrifices safety for profit. It critiques the negligence standard as applied to aviation manufacturing, discussing whether the deterrent goal of tort law could be better served by a strict liability standard for manufacturers in design defect cases, and advocates for policy changes that could help to strike the right balance between progress and accountability in aviation technology.