This paper provides an economic justification for the exemption from liability for omissions in torts and for the exceptions to this exemption. It interprets the differential treatment of acts and omissions under tort law as a proxy for a more fundamental distinction between harms caused by multiple injurers, where each one can single-handedly prevent the harm, and harms caused by a single injurer. Since the overall cost to which a group of injurers is exposed is constant, attributing liability to many (...) injurers reduces the part each has to pay and, consequently, reduces each one’s incentives to take precautions. Broad exemption from liability for omissions is a way of carving a simple, practical rule to distinguish between the typical cases in which an agent can be easily selected and provided with sufficient incentives and cases in which there is a serious problem of dilution of liability. The exceptions to the rule exempting from liability for omissions are explained in terms of efficiency. The imposition of liability for omissions depends on the ability to identify a salient agent, i.e., to single out one or few liable agents and differentiate their role from that of others. Tort law designs three types of "salience rules." It either creates salience directly, or it can exploit salience created "naturally," or it can induce injurers to create salience voluntarily. (shrink)

In these pages we seek to integrate two claims. First, we argue that, taken to their logical conclusions, the considerations that support a strict form of protection for tangible property rights do not call for a similar form of protection when applied to the case of copyright. More dramatically, these considerations demand, on pain of glaring inconsistency, a substantially weaker protection for copyright. In pursuing this claim, we show that the form of protecting property rights is, to an important extent, (...) a feature of certain normal, though contingent, facts about the human world. Second, the normative question concerning the selection of a desirable protection for creative works is most naturally pursued from a tort law perspective, in part because the normative structure of copyright law simply is that of tort law. (shrink)

It takes courage to characterize feminist writings on tort law as "thin." Indeed, Professor Schwartz in his provocative and challenging article examines feminist writings in a unique and innovative way. In his analysis of a number of such writings, he attempts to demonstrate that they either have not done enough or could have done better. His provocative analysis of many issues invites vigorous discussion. One could write a separate comment on each and every one of the issues he raises; however, (...) I will limit my comment to two: the tension between the "reasonable man" and the "reasonable woman" standard and the duty to rescue rule. It takes courage to characterize feminist writings on tort law as "thin." Indeed, Professor Schwartz in his provocative and challenging article examines feminist writings in a unique and innovative way. In his analysis of a number of such writings, he attempts to demonstrate that they either have not done enough or could have done better. His provocative analysis of many issues invites vigorous discussion. One could write a separate comment on each and every one of the issues he raises; however, I will limit my comment to two: the tension between the "reasonable man" and the "reasonable woman" standard and the duty to rescue rule. (shrink)