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Torts and Innovation

33 Pages Posted: 8 Nov 2007 Last revised: 21 Oct 2015

Gideon Parchomovsky

University of Pennsylvania Law School; Bar Ilan University - Faculty of Law

Alex Stein

Brooklyn Law School

Date Written: 2008


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 Classification: K13, O31

Suggested Citation

Parchomovsky, Gideon and Stein, Alex, Torts and Innovation (2008). 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. Available at SSRN:

Gideon Parchomovsky (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-1603 (Phone)

Bar Ilan University - Faculty of Law ( email )

Ramat Gan 52900
972-2-5317078 (Phone)

Alex Stein

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0615 (Phone)

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