Gorsuch, J., dissenting
out; they get lost in fine print”).
The traditional tort rule bears yet another virtue: It is simple to apply. The traditional rule affords manufacturers fair notice of their legal duties, lets injured consumers know whom to sue, and ensures courts will treat like cases alike. By contrast, when liability depends on the application of opaque or multifactor standards like the one proposed below or the one announced today, “equality of treatment” becomes harder to ensure across cases; “predictability is destroyed” for innovators, investors, and consumers alike; and “judicial courage is impaired” as the ability (and temptation) to fit the law to the case, rather than the case to the law, grows. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989).
Just consider some of the uncertainties each part of the Court’s new three-part test is sure to invite:
- (i) When does a customer’s side-by-side use of two products qualify as “incorporation” of the products? Does hanging asbestos on the outside of a boiler count, or must asbestos be placed inside a product? And when is incorporation of a dangerous third-party product “required” as opposed to just optimal or preferred? What if a potential substitute existed, but it was less effective or more costly (surely alternatives to asbestos insulation have existed for a long time)? And what if the third-party product becomes less advantageous over time due to advancing technology (as asbestos did)? When does the defendant’s duty to warn end?
- (ii) What will qualify as an “integrated product”? In the past, we’ve suggested that a “product” is whatever assemblage of parts is “placed in the stream of commerce by the manufacturer,” and we’ve stressed the importance of maintaining the “distinction between the components added to a product by a manufacturer
