Tuesday Tips: Week of March 9, 2026
Yehuda Adar & Ronen Perry
Yehuda Adar
Ronen Perry
Abstract
A “contort” is a wrongful act that simultaneously constitutes a tort and a breach of contract. This concurrence potentially brings into play two competing legal frameworks—contract and tort. As these complex frameworks markedly diverge, the classification of the claim is often crucial. The Article exposes the profound incongruity between the rival frameworks, emphasizing the high stakes involved, taxonomizes existing legal responses to such incongruity in contort cases across the world, and proposes a paradigm shift in this central though undertheorized area of law.
Part I illustrates how the label may drastically alter the outcome by mapping the differences between the two frameworks—from the applicability of defenses, through the availability and scope of various remedies, to major constraints on actualization and enforcement of rights.
Part II examines the two paradigms currently used to determine the applicable law in contort cases. Under the first paradigm, one of the two frameworks categorically prevails. For example, the French principle of non-cumul mandates deference to contract law. Under the second paradigm, the applicable framework is selected on a case-by-case basis. For example, the Anglo-American principle of concurrent liability confers the power of election on the plaintiffs. However, courts sometimes scrutinize and curtail plaintiffs’ choices through vague legal concepts, such as the “gist” or “gravamen” of the action.
Part III proposes a transformative paradigm shift: a policy-driven selection of one of the two competing rules (from existing contract and tort frameworks) for each legal question raised in the overlap zone. It introduces the new paradigm, highlights its revolutionary aspects (particularly the development of an amalgam of contract and tort rules), presents compelling justifications for its adoption, and prescribes guidelines for its implementation. It then applies the new model to three representative discrepancies between the contract and tort frameworks.
Andrew A. Schwartz
Abstract
The law endows corporations and other business organizations with the awesome power of perpetual life—unless the charter expressly provides for a certain duration, such as ten years. But does anyone ever actually choose limited life? Why would they?
This article reveals that limited-life business entities—finite ventures—play a significant and underappreciated role in modern commerce. Private equity and venture capital funds, SPACs, and insurance syndicates are all organized with a limited lifespan.Their motivation? This article claims that limited life is a valuable, but often overlooked, tool for ameliorating agency costs: the managers of a finite venture know they must produce results by the end of the term—their future career prospects depend on it—so they have an incentive to be diligent and loyal.
Even so, limited life has drawbacks—and perpetual life has benefits of its own—so the trick is to know when to use it. To guide decision-makers, this article identifies key factors that weigh in favor of or against finite structure. It closes by proposing novel applications of limited life as a tool of corporate governance—inviting scholars and practitioners alike to rethink the assumption of corporate immortality.
Zahra Takhshid
Abstract
Large Language Models (LLMs) are transforming industries from education to healthcare, with growing implications for how children experience digital technologies. However, the transformation has not been without cost. Parents have filed lawsuits alleging that LLMs and their defective designs have harmed children, including leading to suicide. With the current regulatory gap in most states, foundation model companies are not required to implement safety measures. This Article argues that products liability law should govern LLMs. Products liability law emerged as a tool to address the doctrinal shortcomings that allowed companies to escape liability for defective products. Despite its historical pro-consumer roots, its application to foundation model developers presents distinct doctrinal hurdles.
First, products liability law traditionally applies only to tangible products. By examining intangibility with respect to both product form and informational content, this Article argues that courts should move beyond the tangibility requirement with respect to LLMs. It surveys recent decisions in which plaintiffs successfully persuaded courts to treat digital applications as products governed by products liability doctrine. Second, defendants will inevitably raise First Amendment defenses, claiming that LLM outputs constitute protected speech. This Article argues that LLM outputs should not receive First Amendment protection. And even if they did, such protection would not preclude products liability claims, as many LLM harm lawsuits challenge the application’s design and functionality rather than its content.
Subjecting foundation model companies to products liability does not mean a decrease in innovation as plaintiffs must still prove defect and satisfy all requisite elements such as causation. Rather, such liability will incentivize companies to implement safety mechanisms that minimize the risk of consumer harm from the LLMs sycophantic designs.