Paper on SSRN from Gideon Parchomovsky (Penn) and Alex Stein (Cardozo):

This Essay identifies an anti-innovation bias in the law of torts. Tort law's reliance on custom in ascribing liability for negligence, medical malpractice and defective products taxes innovators and subsidizes replicators of conventional technologies. The Essay analyzes the causes and consequences of this bias and proposes two alternative ways to remedy it.

Update: paper published in Michigan Law Review here.