Law Commons^™

Torts And Innovation, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

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.

Jackpot Justice And The American Tort System: Thinking Beyond Junk Science, Tom Baker, Herbert M. Kritzer, Neil Vidmar

All Faculty Scholarship

In 2007 the Pacific Research Institute released a report, Jackpot Justice: The True Cost of America's Tort System, that is widely available on the internet. The conclusion of the report is that America's tort system costs $865.37 billion annually, amounting to an "annual price tag, or 'tort tax' for a family of four in terms of costs and foregone benefits" of $9,827. As our report will demonstrate, the conclusions of Jackpot Justice are without scientific merit and present a very misleading picture of the American tort system and its costs.

Research on the tort system's efficiency, its fairness and …

Compliance With Advance Directives: Wrongful Living And Tort Law Incentives, Holly Fernandez Lynch, Michele Mathes, Nadia N. Sawicki

All Faculty Scholarship

Modern ethical and legal norms generally require that deference be accorded to patients' decisions regarding treatment, including decisions to refuse life-sustaining care, even when patients no longer have the capacity to communicate those decisions to their physicians. Advance directives were developed as a means by which a patient's autonomy regarding medical care might survive such incapacity. Unfortunately, preserving patient autonomy at the end of life has been no simple task. First, it has been difficult to persuade patients to prepare for incapacity by making their wishes known. Second, even when they have done so, there is a distinct possibility that …

Demystifying The Right To Exclude: Of Property, Inviolability, And Automatic Injunctions, Shyamkrishna Balganesh

All Faculty Scholarship

The right to exclude has long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what an owner's right to exclude means and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief- that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. Such a view attributes to the right a distinctively consequentialist meaning, which …

Commentary On Class Settlements Under Attack, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

Liability Insurance, Moral Luck, And Auto Accidents, Tom Baker

All Faculty Scholarship

Beginning with the seminal work by Williams and Nagel, moral philosophers have used auto accident hypotheticals to illustrate the phenomenon of moral luck. Moral luck occurs in the hypotheticals because (and to the extent that) two equally careless drivers are assessed differently because only one of them caused an accident. This article considers whether these philosophical discussions might contribute to the public policy debate over compensation for auto accidents. Using liability and insurance practices in the United States as an illustrative example, the article explains that auto liability insurance substantially mitigates moral luck and argues that, as a result, the …

Greater And Lesser Powers Of Tort Reform: The Primary Jurisdiction Doctrine And State-Law Claims Concerning Fda-Approved Products, Catherine T. Struve

All Faculty Scholarship

No abstract provided.