Market-Share Liability After Hymowitz and Conley: Exploring the Limits of Judicial Power

This Note surveys the development of market-share liability and examines the limits on the power of state and federal courts to impose liability on defendants through market-share liability. Part I examines briefly the development of market-share liability in the early 1980s. It then explores how the New York Court of Appeals extended market-share liability in Hymowitz v. Eli Lilly and explores this case’s ramifications. Part I also draws on a recent Florida case, Conley v. Boyle Drug Co., for further insight into the problems surrounding market-share liability litigation. Part II argues that jurisdictional limitations, such as standing to sue in federal court and the requirements for in personam jurisdiction over defendants, should pose significant restraints on judicial power to apply the most expansive versions of market-share liability. Part III urges that Congress enact a law, as an appropriate exercise of its power under the commerce clause, to limit the power of states to create theories of liability that can significantly interfere with interstate commerce.