Tort Law and Technology

Abstract

Many commentators argue that tort law is inappropriate for responding to the risks posed by emerging technologies. Courts are often seen as technically incompetent, and the case method is criticized for sending haphazard signals to producers. Administrative agencies, it is argued, have greater expertise than courts, and their capacity for uniform rule-making allows them to create a stable legal environment that contributes to technical progress and economic growth. These criticisms seem to justify current trends in preemption of tort law-Congress has been considering measures to restrict tort law, and courts are increasingly finding tort law preempted, even in the absence of explicit legislation to that effect.

Professor Lyndon argues that tort law plays a valuable role in the management of new technologies. By giving producers incentives to concern themselves with all harms that a new technology may cause, rather than just those that a regulatory agency identifies, tort law encourages broader and more effective consideration of safety issues. In addition, knowledge of the specific context in which alleged harms were suffered may be critical in deciding how to react to those harms. The case method allows a more detailed consideration of this context. The focus of legal reform, Professor Lyndon argues, should not be on preempting on tort law, but on determining how tort law, regulation, and intellectual property law can best complement one another to allocate the burdens and benefits presented by technological change.