Harvard Law Review
Note, 108 (1995): 1679.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
ABSOLUTE LIABILITY FOR AMMUNITION MANUFACTURERSAmericans continue to debate contentiously the feasibility and necessity of firearm and ammunition regulation.[1] Over the past few years, the context and terms of this debate have begun to shift. Bullet-related injuries and deaths are increasingly viewed as a serious public health problem[2] instead of simply as a crime problem.[3] In an era of spiraling health care costs, the public is increasingly aware of the enormous expenses for treatment of bullet-related injuries ¾ expenses that are largely borne by the public.[4]
This Note proposes that ammunition manufacturers be subject to a form of absolute liability[5] for all injuries resulting from the bullets they manufacture. The proposed form of liability is "absolute" in that the victim would not have to prove that the manufacturer was negligent and in that a user's negligence would not eliminate the manufacturer's liability.[6] This standard, consistent with accepted tenets of law and economics, is designed to achieve optimal care and activity levels.[7] This proposal does not seek to impose any direct legal impediments to the purchase of firearms or ammunition. Any reduction of ammunition consumption would be incidental.
Previous arguments for manufacturer liability, both in the courts and in the academic literature, were directed at firearm manufacturers, [Page 1680] and usually at manufacturers of specific types of firearms.[8] Maintaining that perfectly functioning handguns constitute defective, "unreasonably dangerous" products, many commentators throughout the 1980s argued that handgun manufacturers should be held strictly liable under Section 402A of the Restatement (Second) of Torts.[9] The underlying premise of this argument is that the overall social costs of handguns exceed their benefits. Thus, the imposition of a liability premium reflecting these costs would price handguns out of the market. This argument, which was unanimously rejected by the courts,[10] is suspect on a number of grounds. First, because advocates of this approach have failed to offer a feasible alternative design, as is commonly required in design-defect cases,[11] they in effect attempt to achieve judicially what they could not achieve legislatively ¾ a complete ban on handguns.[12] Second, judges and juries operate on a case-by-case basis and are ill equipped to calculate the aggregate costs and benefits of firearms, especially when experts in the field cannot even agree on what constitute such costs or benefits. Finally, focusing on a narrow band of firearms such as handguns might cause more harm than good because handgun users may shift to less expensive, more accessible firearms ¾ that is, those free of the liability premium, such as long guns ¾ that might prove even more lethal.
This Note attempts to avoid the problems of earlier analyses by advocating a unique liability rule directed at ammunition manufacturers. Part I of this Note briefly examines and evaluates recent efforts to regulate ammunition rather than firearms and explains why ammunition manufacturers are the appropriate target of a liability rule. Part II evaluates the costs and benefits of ammunition and concludes that a rule of absolute manufacturer liability is desirable. Part III of this Note outlines a proposed liability statute. Finally, Part IV explains why absolute manufacturer liability is the most efficient means by which to achieve optimal care and activity levels.[Page 1681]
I. AMMUNITION AS PATHOGEN
A recent movement led by Senator Daniel Patrick Moynihan of New York has led Congress, for the first time, to examine seriously the possibility of regulating, banning, or taxing certain calibers and types of bullets.[13] Senator Moynihan's definition of the harm as the bullet and not the gun is an innovative and commendable approach to one of America's most pressing social and medical problems. According to recent estimates, there are approximately 200 million privately owned firearms ¾ 70 million of which are handguns ¾ in the United States, a number sufficient to keep Americans heavily armed well into the twenty-second century.[14] On the other hand, it is estimated that there is only a three-to four-year supply of bullets.[15] Thus, given the tremendous stock of firearms and the limited supply of ammunition, a policy focused on ammunition has a potentially much greater impact.[16]
Senator Moynihan has introduced a series of bills designed to tax certain calibers of bullets.[17] Although these bills ostensibly are designed to raise revenue, it is clear that Senator Moynihan views the ammunition tax as a politically palatable method of banning certain types of ammunition.[18] Unfortunately, the specifics of Moynihan's proposals, as well as his method of implementation, are flawed. Most significantly, his proposals fail to deal adequately with the possibility of substitution of other, more lethal bullets or functionally identical cartridges.[19] Certain calibers might be taxed out of existence, but equally or more lethal bullets would quickly take their place. Moreover, the difficulty the government would encounter in attempting to calibrate a tax to the damage each bullet causes also militates in favor of regulation by a liability rule rather than by a tax.[Page 1682]
Notwithstanding the flaws in Moynihan's proposed tax, there are at least three advantages to regulation that focuses on ammunition rather than firearms. First, 'taxing' each bullet acts as a counter that, like a consumption tax, charges people based on their level of use of a particular bullet. Unlike similar proposals directed at firearms, a tax or liability rule aimed at ammunition differentiates both by volume of use and among types of consumers. Second, focusing on ammunition deals most effectively with the existing stock of firearms: given the number of firearms outstanding, a liability rule or tax focused on firearm manufacturers likely will not have any significant impact on activity or care levels. Third, liability proposals aimed at firearm manufacturers have failed to consider the problem of long-tail liability. Most existing firearms were manufactured a number of years ago and have proven exceptionally durable.[20] Because manufacturers have not in the past charged liability premiums on the sale of firearms ¾ given the liability rules existing at the time of sale ¾ the introduction of strict or absolute liability would leave firearm manufacturers unable to pay for the costs of injuries resulting from their products.[21]
II. COSTS AND BENEFITS OF FIREARMS AND AMMUNITION[22]
Over 38,000 people were killed by bullets in 1991;[23] an additional 150,000 to 200,000 people were injured, many severely.[24] Although stories abound of innocent five-year-olds caught in the cross-fire of [Page 1683] gang warfare and of disgruntled postal workers shooting their former colleagues, criminal homicides are not the leading type of firearm-related death. In 1991, 18,526 persons committed suicide with a firearm (48% of all firearm-related deaths), 17,748 persons were murdered with a firearm (46%), 1441 deaths were the result of firearm accidents,[25] and 657 felons were killed with a firearm by police or private citizens.[26] An examination of the costs and benefits of firearms and ammunition thus requires an evaluation of more than just criminal misuse. This Part offers a brief overview of the costs and benefits and concludes that an absolute liability rule is socially optimal.
A. The Epidemiology of Loaded Firearms
The costs of bullet wounds can easily be illustrated. First, there are a number of direct pecuniary costs, including victim treatment, recovery expenses, continuing medical expenses, and funeral expenses. Fortunately, medical advances have helped to save people who would almost certainly have died from their injuries a decade ago. However, the costs of this care are placing a significant strain on an already overburdened health care system.[27] According to recent reports from the Surgeon General's Office, gunshot injuries cost the health care system well over three billion dollars annually.[28] The general public pays approximately eighty-five percent of the direct health care costs of gunshot victims.[29] Thus, even if all injuries and deaths associated [Page 1684] with firearms fell solely upon actual users of guns and ammunition, they bear few of the direct costs of their activities.[30]
Second, there are indirect costs, such as lost wages and lost productivity. These costs are estimated at upwards of eighteen billion dollars annually, with most of that sum borne by society.[31] Finally, there is a largely overlooked but extremely important cost ¾ the nonpecuniary cost of injuries and deaths from bullets.[32] While the monetary figures alone suggest a serious externality, statistics do not begin to describe the loss to the victim and to the victim's family.[33]
B. Benefits of Loaded Firearms
If a liability rule is employed to internalize costs of ammunition yet many benefits of gun ownership remain widely shared, too little ammunition may be produced.[34] It is therefore necessary to consider the extent to which private ownership provides a public good from which all citizens benefit. Although the ownership of firearms and ammunition confers many benefits, most are limited to users of guns and ammunition. Only the general deterrence of crime potentially offers real benefits to society.
I. Recreational Uses of Firearms and Ammunition. ¾ One of the predominant benefits of firearms and ammunition is the pleasure that individuals derive from such activities as hunting and target shooting. Nevertheless, such recreational benefits do not extend beyond users.
2. Specific Deterrence. ¾ While the use of guns for self-defense remains a controversial topic,[35] very little empirical evidence supports the notion that gun ownership is an effective crime deterrent. The available data suggest that a firearm owned for self-defense is much more likely to be involved in a suicide or accident than it is to kill or to injure a criminal attacker.[36] Such ratios, however, are overstated [Page 1685] because they fail to account for the use of a firearm in situations in which a criminal is frightened away but not shot.[37] The total defensive use of firearms is thus difficult to calculate accurately.[38] Whatever the ultimate empirical answer, any net benefit of specific deterrence will be limited to the gun owner and her family.[39]
3. General Deterrence. ¾ Although general deterrence of crime is the most important potential benefit to society from individual firearm ownership, it is by far the most difficult to assess. The number of people who refrain from committing a crime for fear of being shot by an armed victim cannot be accurately estimated.[40] The only firm conclusion one can draw from the available data is that 'the public benefit of having a heavily armed citizenry remains to be demonstrated.'[41]
It is difficult to deny that there is some public benefit from widespread ownership of guns ¾ that some potential criminals are deterred by the fear of being shot. Each year, approximately 350 criminals are killed by private citizens using firearms,[42] and still other criminals are injured or captured by the same means. Most studies, however, have determined that crime rates are largely unaffected by the density of private gun ownership.[43] For example, one study found "no statistically discernible effect of gun prevalence on the robbery rate."[44] Still other research has indicated that "burglary rates tend to increase with gun ownership."[45] This escalation might be explained by the potential increased payoff to burglars who are able to steal the firearms and ammunition as well.[46] Thus, not only has there been no [Page 1686] persuasive demonstration of general deterrence attributable to the ownership of firearms, but widespread ownership may in fact increase the incidence of some crimes.
C. Reducing the Costs From Ammunition and Firearms
Although there has been little demonstration of any general societal benefit from individual ownership and use of loaded firearms, many studies suggest that limiting the prevalence of loaded firearms could reduce the incidence of bullet injuries and deaths. Studies to date have demonstrated benefits from a reduction in firearms in three areas: criminal homicides and injuries; suicides; and accidental deaths and injuries.
I. Criminal Misuse of Loaded Firearms. ¾ One of the most persuasive studies to date has concluded that controlling private ownership of handguns significantly decreases both the number of handgun homicides and the overall number of homicides.[47] This study has been lauded as conclusive proof of the effectiveness of gun control at lowering the homicide rate, but it also has been criticized. First, the study's estimates of handgun prevalence were based on indirect evidence.[48] Second, there is evidence to suggest that the differing racial compositions of the cities studied, rather than their respective levels of handgun prevalence, may explain the difference in homicide rates.[49] Nevertheless, many have taken the study as proof that the prevalence of handguns has some effect on the overall homicide rate.
Although the connection between firearm prevalence and criminal homicide among strangers remains controversial, few doubt that a firearm kept in the home can result in a permanent, and tragic, resolution to a domestic argument. A recent study in the New England Journal of Medicine concluded: "People who keep guns in their homes appear to be at greater risk of homicide in the home than people who do not. Most of this risk is due to a substantially greater risk of homicide at the hands of a family member or intimate acquaintance."[50] Given that almost half of all homicides involve conflicts between acquaintances or relatives,[51] removing loaded firearms from domestic settings should reduce overall homicide.[Page 1687]
2. Suicides. ¾ As indicated above, suicides account for the largest percentage of firearm deaths. Although the pathogenesis of suicide remains elusive and needs further investigation, a recent study concluded that the presence of a firearm in the home is "associated with an increased risk of suicide." [52] Moreover, numerous studies have demonstrated that the presence of a loaded firearm has a significant impact on the likelihood of a successful suicide by fifteen to twenty-four year-olds.[53] In the absence of a firearm, suicidal teenagers ¾ who often attempt suicide as a plea for help and not out of a true desire to die ¾ may turn to less lethal methods, which may provide others with an opportunity to intervene.[54] Given the ease and success rate of suicide by firearm,[55] reducing firearm availability should reduce the number of suicide fatalities.
3. Firearm Accidents. ¾ Over 1400 individuals were unintentionally killed by firearm in 1991.[56] While this number is significantly smaller than the figures for firearm murders or suicides, such deaths are particularly tragic because many of those killed are young children.[57] In addition, studies have found that less than ten percent of unintentional shootings end in fatalities,[58] a figure which suggests upwards of 14,000 additional nonfatal accidental shootings annually. Of all firearm fatalities and injuries, accidents may be the easiest to prevent. Firearm accidents will not occur in the absence of loaded firearms in the home; nor will individuals "substitute" other forms of accidents.[Page 1688]
D. Conclusion
Most of the costs of firearm and ammunition violence are borne by society as a whole and particularly by innocent bystanders. In contrast, the benefits of ammunition and firearms accrue largely to individual gun owners and users. Because ammunition often causes injury and death to third parties or consumers whose care and rehabilitation is paid for by society, and because ammunition provides no substantial demonstrated social benefit, the amount of firearms and ammunition consumed is socially excessive.[59] In such a situation ¾ in which the benefits are concentrated among users while the costs are largely borne by society as a whole ¾ conventional law and economics teaches that a liability rule requiring parties involved in a transaction to bear the full cost of their activity is necessary to achieve optimal care and activity levels.[60] The next Part proposes a liability rule that would force manufacturers and consumers to internalize costs that are currently borne by society at large.[Page 1689]
III. FEDERAL AMMUNITION MANUFACTURER LIABILITY ACT: A PROPOSAL[61]
§ 1. Liability. ¾ The manufacturer and/or importer of ammunition shall be held absolutely liable for all direct and consequential damages that arise from injuries resulting from their ammunition. This liability shall be imposed without regard to proof of fault or defect, and without regard to any intervening causes,[62] including, but not limited to, negligent misuse of a firearm.
§ 2. Standing. ¾ A suit may be brought under § 1 of this Act by the victim, the family of the victim, or anyone who has provided or paid for treatment of ammunition wounds.[63]
§ 3. Subrogation. ¾ Any recovery under § 1 of this Act shall be applied in the following order: (a) to payment of medical bills not covered by any insurance; (b) to repayment of medical bills borne by the state or federal government;[64] and (c) to an escrow account, in an amount up to the expected future medical costs, for future treatment and rehabilitation. Any amount remaining shall be applied in accordance with state law.
§ 4. Contribution. ¾ Any manufacturer or importer held liable for damages under § 1 of this Act may bring a tort action under any existing state common law or statute against: (a) any individual criminally responsible for the injury or death; or (b) the manufacturer or importer of a defective firearm used in the shooting.[65] No such suit shall affect the obligation to pay a final judgment under § 1.[Page 1690]
§ 5. Felony Exception. ¾ Any manufacturer or importer sued under § 1 of this Act shall be permitted to raise as a complete defense to any such suit that the victim was injured while committing a felony. The fact that an individual has not been convicted in a criminal proceeding of a felony shall not prevent the manufacturer or importer from interposing this defense.[66]
§ 6. Markers. ¾ Each bullet sold in the United States must bear a mark identifying its manufacturer or importer on both the casing (or shell) and the core (or hull). Such mark must be registered with the Consumer Products Safety Commission.
IV. AMMUNITION MANUFACTURER LIABILITY ¾ A JUSTIFICATION
The proposed Act does not reflect any moral or ethical condemnation of ammunition manufacturers; nor does it represent any judgment that the overall costs of ammunition exceed the overall benefits. The proposal seeks simply to rectify one of the most significant externalities facing American society today ¾ the costs of ammunition use.
In competitive markets, the cost of a liability rule is passed on to the consumer in the form of higher prices.[67] Thus, under the proposed Act, each bullet should rise in price by an amount equal to the average expected liability arising from that bullet.[68] While the price of bullets would undoubtedly rise as a result, it is difficult to predict the proposed Act's likely impact on ammunition sales and gun use. If consumer demand is relatively price-inelastic, the proposed rule will not significantly reduce consumption of ammunition.[69] If consumers are strongly influenced by price fluctuations, some firearms and ammunition will be consumed less often. The latter ¾ which seems likely ¾ would suggest that, under the current scheme, consumers have underestimated the costs of their activity or have not internalized those costs, since the liability rule would merely force the internalization [Page 1691] of the existing costs of ammunition.[70] If the proposed Act reduced the prevalence of legally owned loaded firearms, not only would suicides and accidents decline, but research suggests that gun prevalence among criminals would also decrease because density of firearm ownership among criminals is influenced by the level of lawful gun ownership.[71]
A. Benefits of the Ammunition Manufacturer Liability Act
The primary advantage of the proposed Act is that it will force consumers of ammunition to internalize costs that have heretofore been borne by third parties and society in general.[72] Such internalization will provide manufacturers and consumers with the proper incentives to choose care and activity levels that more closely equate costs and benefits. By requiring manufacturers to pay for the injuries caused by bullets, the proposed Act will ease the burden on society as well as compensate injured victims.
The proposed Act offers a number of other benefits. This section will briefly examine three of these benefits: providing an incentive to manufacturers to take optimal care; helping consumers to appreciate the full cost of their activities; and preventing substitution to more lethal weapons.[73]
I. Manufacturer's Incentive to Take Care. ¾ The proposed Act should induce a manufacturer to reduce the probability that its bullets will result in injury or death. The fewer the expected injuries, the lower the liability premium the manufacturer will have to charge. For example, the proposed Act would provide manufacturers with a strong [Page 1692] incentive to distribute ammunition only to reputable gun clubs[74] and retailers[75] and to take adequate measures to ensure that shipments of bullets are not stolen or redistributed to more dangerous users.[76] Manufacturers would also have an incentive to create specific types of bullets[77] and to limit distribution of certain ammunition to particular users. For example, especially lethal bullets, such as hollow-points or steel-tipped ammunition designed to penetrate bullet-proof vests, would likely be distributed only to police and comparable organizations.[78]
The proposed Act would also provide manufacturers with the proper incentive to inform consumers of the real risks of owning a firearm.[79] Because the manufacturer would benefit from a reduced liability premium, it would have reason to educate owners of the potential risks associated with firearms, to assist them in taking steps to reduce accidents, suicides, and gun thefts, and to prevent the escalation of domestic violence.
2. Consumer Information. ¾ An important advantage of absolute liability for ammunition manufacturers is that it would provide a signal ¾ in the form of a price ¾ to individual consumers as to the true social cost of that ammunition. Thus, it would lead to more nearly optimal levels of activity and care.[80] A number of facts suggest that consumers are not adequately informed of the costs of firearm and [Page 1693] ammunition ownership[81] and that, in any event, consumers have inadequate incentives to consider these costs in their purchasing decisions. First, given that most ammunition consumers either do not get injured or do not bear the costs of their own injuries, consumers have little incentive to acquire information. Second, many consumers will purchase ammunition with the attitude that gun accidents happen only to other people.[82] Third, when estimating a product's risks, consumers may find it especially difficult to consider the nonpecuniary costs.[83] Fourth, investigating the true costs of a particular product requires time and effort.[84] Absolute liability overcomes these problems by sending a price signal to the consumer as to the true cost of owning and using firearms and ammunition.
3. Built-in Mechanism to Control Substitution. ¾ Whereas controlling only handguns could increase mortality rates if some people switched to more readily available and more lethal firearms, controlling all ammunition should prevent or significantly curtail substitution to more deadly weapons. The Act inhibits substitution to more deadly ammunition because the liability premium varies with the expected number of injuries a particular bullet causes.[85] Given that handguns comprise only one-third of the firearms in this country but account for over eighty-five percent of the firearm-related injuries and deaths,[86] one might expect that, under the proposed Act, the liability premium on handgun ammunition would be quite high as compared to that on [Page 1694] shotgun and rifle ammunition. This high premium could induce individuals most likely to cause injury to shift to shotguns or rifles.
Such a substitution to long guns could prove disastrous. Numerous studies have shown that a shotgun is at least twice as likely as a handgun to kill the victim of an attack.[87] Therefore, if dangerous individuals switch to more powerful ammunition, more deaths are likely to occur.[88] On the other hand, an assault with a firearm is at least five times more deadly than an assault with the next most lethal substitute, a knife.[89] Thus, the direction of substitution is crucial.
Unlike other proposals in this area, however, the proposed Act has a built-in mechanism to prevent substitution to more lethal ammunition. For example, if the cost of handgun ammunition rises sufficiently to cause those at the greatest risk of precipitating injury or death to switch to shotguns, the price of shotgun ammunition will necessarily rise by an amount equal to the new expected liability premium. In a sense, this proposal would 'tax' each caliber of bullet based on its usage and the actual damage it causes.[90]
B. Potential Difficulties of the Ammunition Manufacturer Liability Act
I. Contributory Negligence. ¾ The proposed Act does not provide for contributory negligence on the part of the ammunition user. While most legal economists agree that, theoretically, a contributory negligence rule is necessary to induce optimal levels of care, the effectiveness of such a rule varies widely in practice.[91] A provision for contributory negligence would make little sense in the context of the proposed Act. First, a contributory negligence rule is administratively [Page 1695] costly because it complicates trials and impedes settlements.[92] Second, in a context in which the probable injuries are serious bodily harm and even death, a legal rule holding the consumer responsible for negligence will be unlikely to provide incentives beyond those that already exist.[93] Third, since most putatively negligent users have insufficient assets to satisfy a judgment, allowing manufacturers to escape liability when users are negligent will lead to significant externalization of costs ¾ the very problem the Act is designed to prevent.[94] Finally, allowing a defense of contributory negligence would dull the price signal generated by absolute liability and lead to cost externalization and thus to socially excessive levels of ammunition consumption.[95] In conclusion, contributory negligence would significantly increase the costs of the proposed Act without providing much additional incentive to take care.
2. Black Market. ¾ It is also possible that the proposal could lead to the development of a black market in ammunition. One must be careful, however, not to overestimate either the likelihood that a black market would arise or the impact of such a black market on the efficacy of the Act. First, unlike drugs, or alcohol during the Prohibition era, neither guns nor ammunition are banned under this proposal. The proposed Act merely "taxes" bullets in accordance with the harm they cause and is thus more like the so-called 'sin taxes' currently placed on alcohol and tobacco, for which significant black markets have not developed.[96] Second, any black market problem that does arise could be addressed by minimal regulation or criminalization. Finally, even if a black market were to develop, the price of ammunition in that market would be higher than the current price of ammunition: the black market price would be affected by the prevailing legal price.[Page 1696] This point is significant because whether criminals obtain firearms and ammunition depends in large part on availability and cost.[97]
3. Homemade Bullets and Fly-By-Night Manufacturers. ¾ Because some calibers of bullets are relatively easy to make at home,[98] homemade bullets could pose a significant impediment to cost internalization. Under the proposed Act, however, the individual maker ¾ as the manufacturer ¾ will be held absolutely liable for any harm caused by the bullets. Moreover, should homemade bullets prove problematic, the proposed Act could be augmented by user liability (or criminal sanctions) when the bullet is unmarked or homemade.[99] Combined, these two measures should retard mass homemade production. In any event, the types of bullets made at home are likely to be basic cartridges and not more sophisticated and deadly forms of ammunition. Thus, even if the Act leads to an increase in the production of homemade bullets, it should still reduce the aggregate social costs of firearm injuries.
Fly-by-night manufacturers may pose a similar problem.[100] Such manufacturers do not incorporate liability premiums into the price of their products because they have no intention of staying in business longer than a few years. This problem can be limited in any of three ways: by requiring minimum insurance for manufacturers; by implementing a capital reserve requirement; or by holding retailers secondarily liable should manufacturers prove unable to satisfy a judgment.
V. CONCLUSION
Absolute liability of ammunition manufacturers represents a novel and aggressive way to address the epidemic of firearm injuries.[101] Neither the data nor this proposal calls for a ban of any type of ammunition or firearm. To the contrary, the proposal recognizes that firearms and ammunition have utility and that "some amount of private gun possession would probably be better than complete disarmament."[102] Nevertheless, there are significant costs associated with bullets, many of which are not borne by owners and users themselves. The proposed Act allocates these costs to manufacturers and consumers jointly as a means of dealing with the mounting epidemic of firearm injuries.
1. This debate has often been dominated by emotions. As Newsweek observed: "Few public-policy debates are so badly understood ¾ so dominated by claptrap, half-truths and false expectations ¾ as the national controversy over guns." Tom Morganthau with Bruce Shenitz, Gun Control: Too Many Guns? Or Too Few?, NEWSWEEK, Aug. 15, 1994, at 44, 44; see Erik Larson , LETHAL PASSAGE 3 (1994).
2. See, e.g., Jonathan Alter, Curb Violence by Targeting Bullets, WASH. MONTHLY, Jan. 1994, at 45, 45 (describing the "re-definition of gun violence as a public health issue"); Paul Cotton, Gun-Associated Violence Increasingly Viewed as Public Health Challenge, 267 JAMA 1171, 1171 (1992).
3. Cf. Daniel W. Webster, C. Patrick Chaulk, Stephen P. Teret & Garen J. Wintemute, Reducing Firearm Injuries, ISSUES SCI. & TECH., Spring 1991, at 73, 73 ("[B]y focusing policy on known criminals, the government ignores the role that gun availability plays in suicides and unintentional shootings, which together constitute almost 60 percent of all gun-related deaths.").
4. See infra pp. 1683-84 (noting that the public bears 85% of the health care costs of gunshot victims).
5. See Steven P. Croley & Jon D. Hanson, Rescuing the Revolution: The Revived Case for Enterprise Liability, 91 MICH. L. REV. 683, 693 (1993).
6. The model legislation proposed by this Note would, however, prohibit recovery by individuals injured in the course of committing a felony. See infra note 66 & p. 1690.
7. A detailed discussion of the traditional law-and-economics framework for analyzing products liability is beyond the scope of this Note. Readers seeking lucid explanations of the law-and-economics style of analysis may wish to consult A. MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 97-104 (2d ed. 1989); STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW passim (1987); and Paul R. Bonney, Note, Manufacturers' Strict Liability for Handgun Injuries: An Economic Analysis, 73 GEO. L.J. 1437, 1445-53 (1985).
8. See, e.g., Carl T. Bogus, Pistols, Politics and Products Liability, 59 U. CIN. L. REV. 1103, 1113-28 (1991); Windle Turley, Manufacturers' and Suppliers' Liability to Handgun Victims, 10 N. KY. L. REV. 41, 61-62 (1982); Bonney, supra note 7, at 1456-57.
9. See, e.g., Windle Turley & Cliff Harrison, Strict Tort Liability of Handgun Suppliers, 6 HAMLINE L. REV. 285, 296-308 (1983); Gerard M. Mackarvich, Note, Manufacturers' Strict Liability for Injuries From a Well-Made Handgun, 24 WM. & MARY L. REV. 467, 482-90 (1983). For a complete discussion of the literature and caselaw from the mid-1980s, see WINDLE TURLEY & JAMES E. ROOKS, JR., I FIREARMS LITIGATION 155-320 (1988).
10. See Bogus, supra note 8, at 1104.
11. See, e.g., Kim D. Larsen, Comment, Strict Products Liability and the Risk-Utility Test for Design Defect: An Economic Analysis, 84 COLUM. L. REV. 2045, 2055-57 (1984).
12. Cf. Note, Handguns and Products Liability, 97 HARV. L. REV. 1912, 1928 (1984) ("The question of the value of handguns and their role in society is one for the legislatures, not for the courts. Courts should not use products liability law to preempt political debate over the issue . . . of handgun control.").
13. See Scott D. Dailard, The Role of Ammunition in a Balanced Program of Gun Control: A Critique of the Moynihan Bullet Bills, 20 J. LEGIS. 19, 19 (1994) ("Since the birth of national firearms policy in 1934, Congress has neither adopted nor proposed any primary gun control strategy based on the regulation of ammunition.").
14. See, e.g., Cotton, supra note 2, at 1172; James D. Wright, Second Thoughts About Gun Control, PUB. INTEREST, Spring 1988, at 23, 29.
15. See 139 CONG. REC. S612, S613 (daily ed. Jan. 21, 1993) (statement of Sen. Moynihan); Daniel P. Moynihan, Just Bite the Bullets!, WASH. POST, Jan. 5, 1995, at A29. This estimate, however, may not be entirely reliable. First, some of the supply of ammunition is in warehouses and has not yet been sold to consumers. Second, should a tax be imposed, the stock of ammunition held by consumers would become more valuable and would likely be expended at a slower rate, a scenario which suggests that the supply might last somewhat longer than four years. Nevertheless, the existing supply of ammunition is substantially less than the effective supply of firearms, which can be continuously reused.
16. Another potential advantage of focusing on ammunition rather than firearms is that ammunition may be easier to identify. First, shells are usually left at the scene of a shooting. Second, the bullet tip can often be extracted from the victim.
17. See S. 179, 103d Cong., 1st Sess. (1993); S. 1616, 103d Cong., 1st Sess. (1993).
18. See 139 CONG. REC. S14,958, S14,959 (daily ed. Nov. 3, 1993) (statement of Sen. Moynihan) ('It is time the Federal Government began taxing handgun ammunition used in crime out of existence.'); 139 CONG. REC. S612, S613 (daily ed. Jan. 21, 1993) (statement of Sen. Moynihan).
19. See Dailard, supra note 13, at 25-31.
20. See Guns in America: Home on the Range, ECONOMIST , Mar. 26, 1994, at 23, 25.
21. Existing manufacturers would not be able to recoup liability payments through higher prices because new companies not saddled by long-tail liability would enter the market and charge a lower premium based solely on future expected liability. See George L. Priest, Lawyers, Liability, and Law Reform: Effects on American Economic Growth and Trade Competitiveness, 71 DENV. U. L. REV. 115, 142 (1993).
A similar charge could be made against any proposal to hold ammunition manufacturers liable. However, as the supply of ammunition in private hands is considerably smaller, ammunition manufacturers would be more likely to survive the change. Moreover, the existing supply of bullets will be exhausted long before the supply of guns, suggesting that bullet liability will have effect long before firearm liability. Finally, in neither case should the primary concern be the viability of specific manufacturers: if existing ammunition manufacturers go bankrupt, new manufacturers will quickly take their place.
22. A review of all relevant studies on this subject is beyond the scope of this Note. A comprehensive review of the literature can be found in Philip J. Cook, The Technology of Personal Violence, in 14 CRIME AND JUSTICE: A REVIEW OF RESEARCH 1, 1-71 (Michael Tonry ed., 1991). A well chosen collection of essays can be found in THE GUN CONTROL DEBATE: YOU DECIDE (Lee Nisbet ed., 1990).
23. See BUREAU OF JUSTICE STATISTICS: SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ¾ 1993 , at 379 (Kathleen Maguire & Ann L. Pastore eds., 1994); Communication from the U.S. Department of Health and Human Services, National Center for Health Statistics, Centers for Disease Control (Oct. 31, 1994) (on file with the Harvard Law School library) [hereinafter CDC Statistics].
24. See, e.g., Cook, supra note 22, at 12 (collecting estimates of injuries related to gun use varying from 139,000 to 183,000); Cotton, supra note 2, at 1172 (noting at least seven injuries for every fatality); Wendy Max & Dorothy P. Rice, Shooting in the Dark: Estimating the Cost of Firearm Injuries, 12 HEALTH AFF. 171, 176 (1993) (estimating 236,400 nonfatal injuries).
25. See CDC Statistics, supra note 23. Over the past decade, suicides have generally accounted for approximately 50% of all firearm deaths. See, e.g., Lee Nisbet, Introduction to THE GUN CONTROL DEBATE: YOU DECIDE, supra note 22, at 11, 12.
26. See U.S. DEP'T OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, 1993 UNIFORM CRIME REPORTS 22 (1994).
27. See, e.g., Max & Rice, supra note 24, at 183 (discussing the difficulties of funding trauma centers, due in large part to uncompensated treatment of firearm victims).
28. See Reynolds Holding, New Weapon in Gun Control Debate, S.F. CHRON. , Nov. 26, 1993, at A1; see also Paul McEnroe, Gun-Related Mayhem and Its Burden on the Health Care System, MINNEAPOLIS STAR TRIBUNE. , Feb. 3, 1994, at 1A, 10A (estimating $2.7 billion in annual costs).
29. See, e.g., Cotton, supra note 2, at 1172; Tony Freemantle, Under the Gun: Arguments for Control Find Their Targets, HOUSTON CHRON. , Dec. 5, 1993, at 1A, 16A; Holding, supra note 28, at A1. The figures undoubtedly overstate the costs directly attributable to firearms and ammunition because some firearm victims would have been injured or killed with other weapons. However, had those injuries been caused by other weapons, the costs of treatment would likely have been lower because bullet injuries and fatalities are among the most costly to treat. See Cotton, supra note 2, at 1172; cf. McEnroe, supra note 28, at A1 (documenting the treatment of one victim of bullet wounds ¾ treatment which will likely cost taxpayers in excess of $3.6 million in health care costs over the next six years alone). A recent study concluded:
Firearm injuries represent less than 0.5 percent of the total number of injuries, yet they account for 9 percent of the total costs of all injuries. The cost per firearm fatality is higher than any other type of fatal injury . . . . [F]irearm injuries are relatively more costly [than] other injuries and other illnesses in general.Max & Rice, supra note 24, at 183.
30. Moreover, of the 15% of costs borne by individuals, some are paid for by innocent bystanders (or their insurers). See, e.g., Robert F. Cochran, Jr., Dangerous Products and Injured Bystanders, 81 KY. L.J. 687, 723 (1992).
31. See, e.g., Kim Cobb, Ben Taub Saves Violence Victims ¾ At a High Cost, Houston Chron. , Dec. 5, 1993, at 20A (estimating $19.5 billion in lost wages each year); Freemantle, supra note 29, at 16A (same); Banning, Taxing Ammo: Can't Hurt, L.A. TIMES , Nov. 15, 1993, at B6 (estimating annual expenses due to gun violence at $16 billion).
32. Nonpecuniary losses include, for example, pain and suffering, emotional distress, and alteration of lifestyle due to injury. See, e.g., AMERICAN LAW INSTITUTE, 2 ENTERPRISE RESPONSIBILITY FOR PERSONAL INJURY 199- 230 (1991).
33. A moving first-hand account of the pain suffered by the family of an innocent victim of a bullet is provided by Judge Michael Luttig, Victim Impact Statement Before Judge William Steger (Jan. 18, 1995), in AM. LAW., Mar. 1995, at 54-55.
34. Liability rules internalize the negative but not the positive externalities of products.
35. See NATIONAL RESEARCH COUNCIL, UNDERSTANDING AND PREVENTING VIOLENCE 264 (Albert J. Reiss, Jr. & Jeffrey A. Roth eds., 1993); Cook, supra note 22, at 61.
36. See, e.g., Bogus, supra note 8, at 1116-21; Arthur L. Kellermann & Donald T. Reay, Protection or Peril? An Analysis of Firearm-Related Deaths in the Home, 314 NEW ENG. J. MED. 1557, 1559 (1986) (documenting 1.3 accidental gunshot deaths, 4.6 criminal homicides, and 37 firearm-related suicides "[f]or every time a gun in the home was involved in a 'self-protection' homicide").
37. See Cook, supra note 22, at 62 (documenting studies that "demonstrate that guns kept in the home are far more likely to kill a family member or friend than an intruder" but noting that this may be misleading because guns are also used to scare off intruders).
38. Compare GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA 106- 07 (1991) (estimating over 700,000 annual defensive uses of firearms) with Cook, supra note 22, at 55-56 (estimating 80,000 such uses).
39. The psychological benefit of owning a loaded firearm for defensive purposes is a significant positive good and should not be ignored even if the actual benefits prove illusory. Again, however, the public does not share in this benefit.
40. See James D. Wright, The Ownership of Firearms for Reasons of Self- Defense, in FIREARMS AND VIOLENCE 301, 303 (Don B. Kates, Jr. ed., 1984).
41. Cook, supra note 22, at 63.
42. See U.S. DEP'T OF JUSTICE, supra note 26, at 22.
43. Homicide rates, however, appear to increase as density of private gun ownership rises. See infra note 47.
44. Cook, supra note 22, at 60; see also Philip J. Cook, The Effect of Gun Availability on Violent Crime Patterns, 455 ANNALS AM. ACAD. POL. & SOC. SCI. 63, 78 (1981) (concluding that gun prevalence is unrelated to the overall rate of violent crime); John H. Sloan et al., Handgun Regulations, Crime, Assaults, and Homicide: A Tale of Two Cities, 319 NEW ENG. J. MED. 1256, 1260 (1988) [hereinafter Seattle Study] (documenting similar rates of robbery and burglary and only "small differences" in rates of assaults between two cities with very different levels of handgun prevalence).
45. Cook, supra note 22, at 60 (emphasis added).
46. See id.
47. See Seattle Study, supra note 44, at 1260 (concluding that the higher murder rate in one city was attributable to the higher handgun homicide rate and that the overall homicide rate was much more strongly influenced by the availability of weapons than by the strength of intent).
48. See James D. Wright, Guns and Sputter, REASON , July 1989, at 46, 46.
49. See id. at 46-47.
50. Arthur L. Kellermann et al., Gun Ownership as a Risk Factor for Homicides in the Home, 329 NEW ENG. J. MED. 1084, 1090 (1993).
51. See U.S. DEP'T OF JUSTICE, supra note 26, at 17 (noting that at least 47% of victims were acquainted with their assailants and that the total figure may be considerably higher because the victim-assailant relationship was unknown in 39% of homicides); FRANKLIN E. ZIMRING & GORDON HAWKINS, THE CITIZEN'S GUIDE TO GUN CONTROL 16 (1987) (estimating that 70% of firearm victims and assailants were previously acquainted).
52. Arthur R. Kellermann et al., Suicide in the Home in Relation to Gun Ownership, 327 NEW ENG. J. MED. 467, 471 (1992). Earlier studies were, however, less conclusive. See, e.g., Charles L. Rich, James G. Young, Richard C. Fowler, John Wagner & Nancy A. Black, Guns and Suicide: Possible Effects of Some Specific Legislation, 147 AM. J. PSYCHIATRY 342, 346 (1990).
53. See, e.g., David A. Brent et al., The Presence and Accessibility of Firearms in the Homes of Adolescent Suicides: A Case-Control Study, 266 JAMA 2989, 2989, 2994-95 (1991) ("The availability of guns in the home, independent of firearms type or method of storage, appears to increase the risk for suicide among adolescents."); Mark L. Rosenberg, James A. Mercy & Vernon N. Houk, Guns and Adolescent Suicides, 266 JAMA 3030, 3030 (1991); John H. Sloan, Frederick P. Rivara, Donald T. Reay, James A.J. Ferris & Arthur L. Kellermann, Firearm Regulations and Rates of Suicide: A Comparison of Two Metropolitan Areas, 322 NEW ENG. J. MED. 369, 369-73 (1990).
54. See Ed Magnuson, Suicides: The Gun Factor, TIME , July 17, 1989, at 61, 61 ("Guns add a dimension of harsh finality to suicide attempts. Psychologists find that most people who attempt to kill themselves do not really wish to die."); Rosenberg, Mercy & Houk, supra note 53, at 3030. This may be particularly important given the sharp increase in firearm suicides among 15- to 24-year-olds. See CDC Statistics, supra note 23.
55. See, e.g., Magnuson, supra note 54, at 61 ("[F]or each successful suicide, there are at least 20 attempts. [But] when people use a gun, the rate of death is 92%.").
56. See CDC Statistics, supra note 23.
57. A number of studies have reported that unintentional firearm fatalities occur most frequently among children and young adults. See, e.g., Paul L. Morrow & Page Hudson, Accidental Firearms Fatalities in North Carolina, 1976-80, 76 AM. J. PUB. HEALTH 1120, 1123 (1986); Garen J. Wintemute, Stephen P. Teret, Jess F. Kraus, Mona A. Wright & Gretchen Bradfield, When Children Shoot Children: 88 Unintended Deaths in California, 257 JAMA 3107, 3107 (1987).
58. See, e.g., Wintemute, Teret, Kraus, Wright & Bradfield, supra note 57, at 3109.
59. Most analyses of products liability law fail to take bystanders adequately into account and also ignore the fact that consumers may shift the costs of their own injuries onto the government. One notable exception is Jon D. Hanson & Kyle D. Logue, The First-Party Insurance Externality: An Economic Justification for Enterprise Liability, 76 CORNELL L. REV. 129, 159 (1990), which argues that even when consumers bear accident costs, they shift them onto their first-party insurers. Nevertheless, most commentators acknowledge that, in the absence of liability, market prices will not reflect third-party effects of transactions. See, e.g., Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes 171 (1991); Polinsky , supra note 7, at 105-06.
Some scholars have asserted that with regard to bystander injuries, absolute manufacturer liability is unambiguously the superior rule. See, e.g., Hanson & Logue, supra, at 135 n.29; Alan Schwartz, Proposals for Products Liability Reform: A Theoretical Synthesis, 97 YALE L.J. 353, 369 n.27 (1988). But this may not be so, even if bystanders incur all of the injuries from a particular product, because tort law does not cause manufacturers and consumers to internalize positive externalities. Enterprise liability is only unambiguously superior to other liability rules if third parties receive no benefit from the product. If third parties receive a benefit from the product, enterprise liability will force a manufacturer and consumer to internalize all costs while some benefits are externalized. If a consumer pays the full cost of a product (including injury to third parties) but realizes only part of the benefit, too little of the product will be produced. Thus, determining whether absolute liability is economically optimal requires analysis of the specific product in question.
60. See, e.g., SHAVELL , supra note 7, at 133-34; Stephen P. Croley & Jon D. Hanson, The Nonpecuniary Costs of Accidents, 108 HARV. L. REV. (forthcoming June 1995); WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 186-87 (1987). The results will be suboptimal without a liability rule because the parties receive the benefit of the transaction but will avoid some or all of the costs. Thus, some consumers purchase ammunition even though they value it at less than its full social cost.
61. While individual states could enact a similar proposal, a national solution would prevent leakage of ammunition from states with less stringent laws and avoid difficult choice of law questions.
62. The intervening-cause argument often proved fatal to early attempts to hold handgun manufacturers strictly liable for injuries from handguns. The rule as often stated is that "an unforeseeable, intervening cause relieves the manufacturer of liability . . . . With [one] exception [that was subsequently overruled], every decision that has considered the foreseeability of the criminal misuse of firearms has found that such criminal activity is not reasonably foreseeable." Martin v. Harrington & Richardson, 743 F.2d 1200, 1205 (7th Cir. 1984).
The proposed statute does not suggest that misuse and accidents are foreseeable; rather, it advocates a novel view of causation in order to reach an efficient result.
63. A difficult question concerns recovery for suicides and attempted suicides. Unless the costs of suicide are internalized, consumers will not face a price that reflects the true cost of ammunition. On the other hand, allowing recovery for suicides arguably could create a moral hazard problem. While the proposed Act allows for recovery in cases of suicide, further study might indicate that such recovery should not be allowed. A compromise position, which would achieve some of the benefits of a price signal while limiting public expenditures for treatment of suicide victims, would allow recovery only for medical treatment and rehabilitation.
64. This clause is designed to ensure that the public is reimbursed for its expenditures.
65. This clause is meant to ensure that firearm manufacturers are still subject to tort liability. For example, if a bullet results in an injury because of a manufacturing defect in a firearm, the ammunition manufacturer required to pay a judgment under section 1 may seek recovery from the firearm manufacturer under standard tort law, as though the ammunition manufacturer were itself the victim.
66. This section has two predominant purposes. First, to the extent that there is a general social benefit when a criminal is captured or killed as a result of a justified use of a firearm, exemption of manufacturers from liability in such cases will ensure that the costs associated with these shootings are as widely distributed as the benefits. The Act avoids the overdeterrence that would otherwise follow if all costs but not all benefits were incorporated into the price of ammunition. Second, allowing felons to recover would increase the potential payoff for criminals.
67. See, e.g., George L. Priest, Can Absolute Manufacturer Liability Be Defended?, 9 YALE J. ON REG. 237, 253 (1992) ("Obviously, if manufacturers are liable for all product-related injuries, the costs of such injuries will be built into the nominal product price.").
68. Such a premium should equal the probability the bullet will cause injury multiplied by the damages anticipated should injury occur. See, e.g., Polinsky , supra note 7, at 100.
69. Although near-perfect inelasticity is an unlikely scenario, at least two scholars opposed to gun control believe that such inelasticity governs the market for firearms. See Gary Kleck & David J. Bordua, The Factual Foundation for Certain Key Assumptions of Gun Control, 5 LAW & POL'Y Q. 271, 278-80 (1983); cf. Bonney, supra note 7, at 1460 n.155 (noting that if demand for handguns is perfectly inelastic, a liability premium included in the price of handguns will compensate victims with 'no economic harm to handgun manufacturers').
70. See Steven P. Croley & Jon D. Hanson, What Liability Crisis? An Alternative Explanation for Recent Events in Products Liability, 8 YALE J. ON REG. 1, 75 n.249, 76-77 (1991).
71. See Cook, supra note 22, at 41 ("[T]he difficulty of obtaining a gun is presumably closely related to the density of gun ownership . . . . [T]he costs of obtaining a gun for those who are not inclined to buy from a dealer will depend on the general prevalence of gun ownership.").
72. While alternative means of internalizing the costs of ammunition exist, none are able to accomplish what absolute liability can while still providing Americans with ready access to loaded firearms. Because it has yet to be demonstrated that the aggregate costs of ammunition exceed its benefits, banning all ammunition is premature, and a partial ban, like early gun-control proposals, could actually increase the number of deaths and injuries because of the substitution effect. Another alternative might be to require all ammunition users to obtain liability insurance. However, such an alternative would be more costly and less effective than absolute liability. First, such a plan would require more government intervention than the proposed Act because the number of ammunition users far exceeds the number of manufacturers. Second, many ammunition users are effectively judgment-proof (given the large damages associated with ammunition wounds) and, thus lacking any personal incentive, might fail to purchase the insurance. See Bonney, supra note 7, at 1438, 1452 n.115. Even if compliance could be ensured, there remains the problem of the first-party insurance externality whereby consumers externalize accident costs onto their insurers. See Hanson & Logue, supra note 59, at 159.
73. A forthcoming article challenges the conventional wisdom that consumers do not demand insurance for pain and suffering and other nonpecuniary losses. See Croley & Hanson, supra note 60. If its authors have correctly identified an unfulfilled consumer need, then another advantage of the proposed Act is that it provides ammunition consumers with nonpecuniary loss insurance for bullet wounds.
74. Manufacturers would be able to sell bullets to rifle and gun clubs at a lower price if clubs could control the flow of bullets and ensure that members were properly trained.
75. A manufacturer who carelessly sold to just any wholesaler or retailer, such as one known to sell ammunition to criminals, would be forced to charge customers a liability premium to cover that risk. Cf. Cochran, supra note 30, at 724¾25 (arguing that firearm manufacturer liability would reduce the incidence of gun sales to those likely to commit crimes). A liability rule targeting ammunition could encompass retailers; however, identifying the retailer of a bullet may prove particularly difficult. Moreover, nothing in the proposed Act prevents a manufacturer from obtaining indemnification from retailers or wholesalers (should a system be devised for identifying which retailer sold the bullet in question).
76. Cf. JAMES D. WRIGHT & PETER H. ROSSI, ARMED AND CONSIDERED DANGEROUS: A SURVEY OF FELONS AND THEIR FIREARMS 232 (1986) (noting that "a distressingly large number" of criminals surveyed reported having stolen guns from "potential[ly] high-volume sources 'such as' manufacturers, shippers, wholesalers [and] retailers").
77. For example, manufacturers might step up efforts to develop bullets that cause less harm, such as the rubber bullets used by riot police.
78. These bullets, which have few legitimate uses, are currently heavily subsidized by taxpayers, who foot most of the bill for the injuries such bullets inflict.
79. See Croley & Hanson, supra note 5, at 787. The notion that manufacturers have no incentive, absent liability, to correct consumer underestimation of risk is universally accepted. See, e.g., id. at 773. Fulton County, Georgia, was apparently so convinced that consumers fail to appreciate the risks of gun ownership that it required guns to bear labels warning that a gun in the home increases the chance that an owner or neighbor will be killed. See Carrie Dowling, Nationline, USA Today , Oct. 7, 1994, at 3A. The county apparently sought to counteract the normal tendency to assume that such tragedies happen only to others. See infra note 82.
80. See Hanson & Logue, supra note 59, at 171.
81. For an in-depth discussion of problems of consumer comprehension of product information, see Howard Latin, "Good" Warnings, Bad Products, and Cognitive Limitations, 41 UCLA L. Rev. 1193, 1206-57 (1994).
82. See, e.g., Guido Calabresi & Kenneth C. Bass III, Right Approach, Wrong Implications: A Critique of McKean on Products Liability, 38 U. CHI. L. REV. 74, 88-89 (1970) ("Most of us tend to underevaluate the likelihood of our own involvement in an accident however compelling the statistics. Accidents happen to the other guy ¾ I'm careful or lucky. This attitude seems especially true when the accident involves serious personal injury. The effect of such psychological underevaluation is to reduce seriously the incentives to alter behavior.").
83. See Croley & Hanson, supra note 60. In fact, many consumers are unable to comprehend fully the psychological and emotional loss that a gunshot wound causes. See Ellen S. Pryor, The Tort Law Debate, Efficiency, and the Kingdom of the Ill: A Critique of the Insurance Theory of Compensation, 79 VA. L. REV. 91, 110-14 (1993).
84. See, e.g., STEPHEN G. BREYER, REGULATION AND ITS REFORM 26 (1982); Croley & Hanson, supra note 5, at 770-72. Moreover, many consumers who attempt to learn about the costs of ammunition may fail to consider certain costs not commonly associated with firearm ownership ¾ for example, that the gun or ammunition may be stolen during a burglary. See, e.g., Wright & Rossi , supra note 76, at 232. Many people are surprised to find that one of the most common ways for criminals to obtain guns is through theft.
85. Some law and economics scholars argue that absolute liability forces consumers to seek more dangerous, unregulated products. See, e.g., James A. Henderson, Jr. & Aaron D. Twerski, Closing the American Products Liability Frontier: The Rejection of Liability Without Defect, 66 N.Y.U. L. REV. 1263, 1291 (1991); Stephen F. Williams, Second Best: The Soft Underbelly of Deterrence Theory in Tort, 106 HARV. L. REV. 932, 933-43. The proposed Act is designed to avoid such criticism.
86. See U.S. DEP'T OF JUSTICE, supra note 26, at 18; Cook, supra note 22, at 23.
87. See, e.g., Cook, supra note 22, at 21-24; Gary Kleck, Policy Lessons from Recent Gun Control Research, 49 LAW & CONTEMP. ACTIIVITIES. 35, 48 (1986) (estimating that long guns are 'one and one-half to ten times as deadly as handguns').
88. This substitution argument is often invoked against a ban on handguns. A recent example appears in David B. Kopel, Peril or Protection? The Risks and Benefits of Handgun Prohibition, 12 ST. LOUIS . 285, 326-32 (1993). See also Wright & Rossi , supra note 76, at 238 (reporting that most of the felons surveyed suggested that they would substitute either upward or laterally if handgun availability declined).
89. See 1 TURLEY & ROOKS, supra note 9, at 15 fig.1-9 (noting that victims of handgun attacks are five times more likely to be killed than victims of knife attacks); Frank Zimring, Is Gun Control Likely to Reduce Violent Killings?, 35 U. CHI. L. REV. 721, 728 (1968) (finding that knife attacks are fatal at a rate of less than one-fifth the rate of death in firearm attacks).
90. See supra note 68 & p. 1690 (describing how a liability premium is calculated). Because the bullets produced for hunting rifles rarely injure or kill individuals, the liability premium on these bullets likely would be quite small.
91. Compare LANDES & POSNER, supra note 60, at 299-300 (arguing that products liability law should include a defense of contributory negligence to induce consumers to take optimal care) and Schwartz, supra note 59, at 392-94 (same) with Hanson & Logue, supra note 59, at 168-73 (arguing that a contributory negligence rule cannot solve the "insuperable" problem of insufficient consumer care).
92. See, e.g., Henderson & Twerski, supra note 85, at 1284 (noting that enterprize liability combined with contributory negligence would necessitate consideration of the manufacturer's negligence in determining a plaintiff's contributory negligence). Under the proposed Act, the victim must establish only two facts: the identity of the manufacturer and the level of damages. The costs of implementation could be reduced in a number of ways. For example, an administrative agency could be established to handle cases arising under the proposed Act. Also, a schedule of damages could be created to avoid contentious litigation over the level of damages.
93. See, e.g., Latin, supra note 81, at 1295 & n.439 (discussing nonlegal incentives to take care); Howard A. Latin, Problem-Solving Behavior and Theories of Tort Liability, 73 CAL. L. REV. 677, 688-93 (1985) (same).
94. Moreover, even those individuals with sufficient assets are unlikely to be substantially affected by a contributory negligence rule, as they will simply shift the costs onto their first-party insurers. See Hanson & Logue, supra note 59, at 159. While an insurer may raise the insurance premiums after such an incident, such an increase, if any, is likely to be small in comparison to the judgment the insurer will have to pay out.
95. See Croley & Hanson, supra note 5, at 791-92.
96. See, e.g., Scott Shuger, A Prescription for Ammo: Why Are Killer Bullets as Easy to Buy as Aspirin?, WASH. POST, Dec. 26, 1993, at C1, C3 (noting that the small arms ammunition market does not have a "financially juicy demand side" and that, even free of restrictions, annual sales are less than a billion dollars, "one thirtieth of total illegal drug receipts").
97. See Cook, supra note 22, at 37, 39, 41.
98. See Judy Pasternak, Taking Aim at Exotic Bullets, L.A. TIMES , Jan. 11, 1994, at A1.
99. Section 6 of the proposed Act prohibits the sale of bullets without a registered mark.
100. See Henderson & Twerski, supra note 85, at 1289.
101. A majority of Americans might support imposing liability on ammunition manufacturers. A 1994 Gallup Poll found that 55% favored "a very high federal sales tax" on bullets. See David W. Moore & Frank Newport, Public Strongly Favors Stricter Gun Control Laws, GALLUP POLL MONTHLY, Jan. 1994, at 18, 24.
102. Daniel D. Polsby, Reflections on Violence, Guns, and the Defensive Use of Lethal Force, 49 LAW & CONTEMP. PROBS. 89, 110-11 (1986).