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 …

Climate Change And Carbon Sequestration: Assessing A Liability Regime For Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson

Alexandra B. Klass

As the nation struggles with how to address climate change, one of the most significant questions is how to reduce increasing levels of carbon dioxide in the atmosphere. One promising technology is carbon capture and sequestration (“CCS”), which consists of capturing carbon dioxide emissions from power plants and industrial sources and sequestering them in deep geologic formations for long periods of time. Areas for potential CO2 sequestration include oil and gas fields, saline aquifers, and coal seams. As Congress and the private sector begin to spend billions of dollars to research and deploy this technology, there has been insufficient attention …

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 …

Why Pedestrian-Friendly Street Design Is Not Negligent, Michael E. Lewyn

Michael E Lewyn

American streets are typically designed for fast automobile traffic. As a result, those streets are often dangerous for pedestrians.

In part, the anti-pedestrian design of American streets is a result of transportation planners' perceptions of American tort law. In negligent street design cases, courts and juries sometimes rely upon guidelines set by the American Association of State Highway and Transportation Officials (AASHTO), a national association of government transportation officials. Because AASHTO's street-design rules have historically favored wide streets built to accommodate high-speed traffic, planners sometimes assume that in order to avoid liability, they must do the same.

The purpose of …

The Cy Pres Problem And The Role Of Damages In Tort Law, Goutam U. Jois

Goutam U Jois

Class action litigation presents a common problem that has received little discussion in the academic literature. In almost every case, the plaintiff class’s recovery is not fully distributed. For example, all possible plaintiffs may not come forward with their claims, the plaintiffs may not be ascertainable, or claims may not be timely submitted. Administrators are regularly posed with the problem of what to do with these residual funds. Currently, courts are free to do virtually anything with such funds. The system is ad hoc, unpredictable, and unguided by any normative principle. In these cases, I propose that the funds should …