Torts and Innovation
University of Pennsylvania Law School; Bar Ilan University - Faculty of Law
Brooklyn Law School
Michigan Law Review, Vol. 107, p. 285, 2008
U of Penn, Inst for Law & Econ Research Paper No. 07-31
Cardozo Legal Studies Research Paper No. 209
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.
Number of Pages in PDF File: 33
Keywords: law & technology, science & technology, torts, evidence, innovation, negligence, products liability, medical malpractice, custom
JEL Classification: K13, O31
Date posted: November 8, 2007 ; Last revised: October 21, 2015
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