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Atypical Actors And Tort Law's Expressive Function, Eli K. Best

Eli K. Best

The rule that an actor’s cognitive disability is not considered in determining whether the actor’s conduct was negligent has been consistently criticized for being unfair and illogical. Focusing on the law’s expressive function, the goals of the disability rights movement, and the heterogeneity of cognitive disability, this Article challenges the common scholarly refrain and argues that the rule is more progressive than the alternative. However, the rule’s articulated justifications may inadvertently perpetuate stereotypes about cognitive disability. Thus, this Article proposes new rationales for the rule, which will allow courts to retain the optimal rule without causing expressive harm.