ABSTRACT
Large Language Models (LLMs) are transforming industries from education to healthcare, with growing implications for how children experience digital technologies. However, the transformation has not been without cost. Parents have filed lawsuits alleging that LLMs and their defective designs have harmed children, including leading to suicide. With the current regulatory gap in most states, foundation model companies are not required to implement safety measures. This Article argues that products liability law should govern LLMs. Products liability law emerged as a tool to address the doctrinal shortcomings that allowed companies to escape liability for defective products. Despite its historical pro-consumer roots, its application to foundation model developers presents distinct doctrinal hurdles.
First, products liability law traditionally applies only to tangible products. By examining intangibility with respect to both product form and informational content, this Article argues that courts should move beyond the tangibility requirement with respect to LLMs. It surveys recent decisions in which plaintiffs successfully persuaded courts to treat digital applications as products governed by products liability doctrine. Second, defendants will inevitably raise First Amendment defenses, claiming that LLM outputs constitute protected speech. This Article argues that LLM outputs should not receive First Amendment protection. And even if they did, such protection would not preclude products liability claims, as many LLM harm lawsuits challenge the application’s design and functionality rather than its content.
Subjecting foundation model companies to products liability does not mean a decrease in innovation as plaintiffs must still prove defect and satisfy all requisite elements such as causation. Rather, such liability will incentivize companies to implement safety mechanisms that minimize the risk of consumer harm from the LLMs sycophantic designs.
Takhshid, Zahra, Large Language Models as Products (February 6, 2026), University of Denver Legal Studies Research Paper Forthcoming.
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