Legal Ethics Agitprop and the Ford Pinto

Basically every private law subject I’ve taken in law school has had something to say about the Ford Pinto case. Various movements in legal theory have referred to it when discussing product liability, consumer rights, the moral turpitude of law and economics, legal ethics (including the procedural pathologies of adversarial advocacy and other annoying alliterations), responsibilities of in-house counsel and, relatedly, the presumed evilness of large corporations. Authors of textbooks on tort law devote considerable numbers of trees to its exposition and analysis.

The example has long since lost any meaning for students and, I hope, commentators (though some professors may continue to observe with amusement the indignant reactions I hear are common among the more ennobled first years). Nevertheless, I was surprised to discover that it is, in fact, utterly false.

Ford allegedly had in its possession a memorandum, so the story runs, to the effect that an $11 part could be installed into the Pinto that would substantially reduce the risk of immolation caused by fuel tanks ruptured in rear-end collisions. Supposedly, no recall was recommended on the basis that the cost of defending legal proceedings brought by passengers injured or killed would be far outweighed by the cost of recalling and fixing the affected cars.

In fact, as Walter Olson notes, and Overlawyered further explains:

The actual memo did not pertain to Pintos, or even Ford products, but to American cars in general; it dealt with rollovers, not rear-end collisions; it did not contemplate the matter of tort liability at all, let alone accept it as cheaper than a design change; it assigned a value to human life because federal regulators, for whose eyes it was meant, themselves employed that concept in their deliberations; and the value it used was one that they, the regulators, had set forth in documents.

So much for evil corporations, then. The famous example of economic rationalism is largely overblown, effectively a myth of unimaginative, left-leaning academics. Indeed:

In retrospect, Schwartz writes, the Pinto’s safety record appears to have been very typical of its time and class.

So the next time someone dredges up this example to support a disingenuous and vitriolic indictment of the legal establishment, do call them to account.


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