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Torts and Innovation
Gideon Parchomovsky University of Pennsylvania Law School; Bar Ilan University - Faculty of Law Alex Stein Yeshiva University - Benjamin N. Cardozo School of Law Michigan Law Review, Vol. 107, p. 285, 2008 U of Penn, Inst for Law & Econ Research Paper No. 07-31 Abstract: 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.
Keywords: law & technology, science & technology, torts, evidence, innovation, negligence, products liability, medical malpractice, custom JEL Classifications: K13, O31 Accepted Paper SeriesDate posted: November 08, 2007 ; Last revised: July 30, 2009Suggested CitationContact Information
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