This Essay exposes and analyzes a hitherto overlooked cost of the current design of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts’ reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, the recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.
law & technology, science & technology, torts, evidence, innovation, negligence, products liability, medical malpractice, custom
Parchomovsky, Gideon and Stein, Alex, "Torts and Innovation" (2008). Faculty Scholarship at Penn Law. 239.
Health Law and Policy Commons, Intellectual Property Law Commons, Law and Economics Commons, Law and Society Commons, Public Economics Commons, Science and Technology Law Commons, Technology and Innovation Commons, Torts Commons