The longstanding rule that tort law ignores a person’s cognitive disability in determining whether the person’s conduct was negligent has been consistently criticized as unfair and illogical. This Article challenges those common criticisms. Focusing on the law’s expressive function and the goals of the disability rights movement, the Article argues that the current rule is potentially more progressive than the alternative. However, the rule’s articulated justifications may inadvertently perpetuate stereotypes about cognitive disability. Thus, the Article suggests ways in which courts can retain the current rule without causing expressive harm.
Eli K. Best,
Atypical Actors and Tort Law's Expressive Function,
96 Marq. L. Rev. 461
Available at: https://scholarship.law.marquette.edu/mulr/vol96/iss2/4