Date Posted: 2000 Full text (original) Today courts regularly
resolve disputes by applying tort principles when they should
apply the law of contracts. When parties have an opportunity to
negotiate the terms of their relationship, the resultant
contracts ought to be enforced. Tort law is an acceptable
substitute only if parties have no opportunity to bargain. Over
the years the boundary between tort and contract has shifted
sharply toward tort. For example, physicians serving rural areas
are often not allowed to contract with patients for a lower
price in return for diminished care. And courts have allowed
consumers who buy cars without air bags to recover from
manufacturers for injuries that only air bags would have
prevented. Sometimes courts even ignore compulsory arbitration
provisions that waive the usual judicial procedures for
resolving disputes. Even worse, rules have sprung up that
prohibit ordinary commercial contracts. A person forbidden to
sell certain products--because a government agency has det