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Full-Text Articles in Law
Confused Culpability, Contrived Causation, And The Collapse Of Tort Theory, Larry Alexander, Kimberly Kessler Ferzan
Confused Culpability, Contrived Causation, And The Collapse Of Tort Theory, Larry Alexander, Kimberly Kessler Ferzan
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What justifies tort law? Once we identify a domain that is central to if not co-extensive with “torts,” we will find that it consists of a motley collection of doctrines that are impossible to justify under any recognizable and attractive normative principles.
Torts And Innovation, Gideon Parchomovsky, Alex Stein
Torts And Innovation, Gideon Parchomovsky, Alex Stein
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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.
Compliance With Advance Directives: Wrongful Living And Tort Law Incentives, Holly Fernandez Lynch, Michele Mathes, Nadia N. Sawicki
Compliance With Advance Directives: Wrongful Living And Tort Law Incentives, Holly Fernandez Lynch, Michele Mathes, Nadia N. Sawicki
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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 …