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Bernie Sanders is posturing against a reasonable reform he once supported – a commonsense lawsuit reform protecting gun manufacturers from scheming theories of liability. He has received undue pressure in progressive circles to backtrack his position and introduce legislation to undo this fair reform.

In 2005, then-Representative Sanders voted for a largely symbolic bill that confirms common sense in lawsuit laws, and he voted with 59 Democrats and 223 Republicans in the House. The Protection of Lawful Commerce in Arms Act (PLCAA) protects gun manufacturers and sellers from being blamed for consumer decisions using novel liability theories. While generally protecting manufacturers and sellers from lawsuits, the bill includes six widely accepted and reasonable exceptions that allow lawsuits when the party was not in fact innocent. Effectively, up until recently, Senator Sanders agreed with the average American in thinking gun manufacturers should not be sued when the purchaser misuses the product.

The American Legislative Exchange Council (ALEC) model Misuse of a Product Act provides a reasonable defense to manufacturers of products when their products are misused. Should a gas can manufacturer be held liable when the user pours gasoline on an open flame? Should a restaurant be held liable when someone chooses to eat fatty foods and becomes obese? Should a gun manufacturer be held liable when someone chooses to take another’s life? Common sense says no.

Bernie Sanders voted for a bill that on its face extended immunity from liability for gun manufacturers. But, in context, the bill did little to shift existing law; it just allowed the law to continue to be followed without a high litigation price tag. At the time the bill was passed, gun manufacturers had not been found to be liable unless they had actually broken the law or fell short of a recognized duty of care, and the PLCAA put this into the congressional code after 33 states had already done the same in their state statutes.

At the time, 31 cities and counties had banded together to attempt to sue gun manufacturers under a public nuisance theory arguing gun manufacturers and sellers were financially responsible for deaths committed using their products. No court had accepted this argument, but the cost of fighting lawsuits was stripping law-abiding sellers and manufacturers of their profits and resources. This is, of course, the inherent problem with frivolous lawsuits against any industry and one of the reasons ALEC model policy tries to filter out frivolous litigation.

Some have argued extending special status to gun manufacturers and sellers is not fair, which is a reasonable concern. Any defendants nationwide should be able to rely on reasonable requirements to bring product liability lawsuits that would shield them from excessive and costly litigation. In addition to the Product Misuse Act, ALEC developed the Product Liability Act to help state legislators find rationality and balance in state product lawsuits.

At, ALEC scored state product liability laws on three factors and identified areas where state legislatures can make a difference.

  • States can create time limits on how long after an injury or defect a lawsuit can be brought. As the time between injury and court testimony widens, memories fade and justice may be more dubious than factual.
  • States can protect innocent product sellers from liability when they had no hand in the development of the product. They might be innocent gun sellers or just innocent mom-and-pop shop owners, but either way, the innocent should not have to expend huge amounts of money to get a fair shake in court.
  • States can protect product manufacturers in compliance with all relevant regulation from excessive punishment and liability. Should a manufacturer of an FDA-approved, life-saving drug be subjected to punitive damages when fully compliant? All drugs have side effects in some sliver of the population, but these side effects do not necessarily merit punishment.

Bernie Sanders has been a fair-weather friend of reasonable reform to minimize the economic consequences of frivolous lawsuits. State legislators across the country should be steadfast supporters.

Crossposted at

Amy Kjose Anderson is director of policy on Civil Justice at the American Legislative Exchange Council (ALEC).