The Strict Liability in Fault and the Fault in Strict Liability

46 Pages Posted: 18 Nov 2016

See all articles by John C. P. Goldberg

John C. P. Goldberg

Harvard Law School

Benjamin C. Zipursky

Fordham University School of Law

Date Written: November 17, 2016

Abstract

Tort scholars have long been obsessed with the dichotomy between strict liability and liability based on fault or wrongdoing. We argue that this is a false dichotomy. Torts such as battery, libel, negligence, and nuisance are wrongs, yet all are “strictly” defined in the sense of setting objective and thus quite demanding standards of conduct. We explain this basic insight under the heading of “the strict liability in fault.” We then turn to the special case of liability for abnormally dangerous activities, which at times really does involve liability without wrongdoing. Through an examination of this odd corner of tort law, we isolate “the fault in strict liability” — that is, the fault line between the wrongs-based form of strict liability that is frequently an aspect of tort liability and the wrongs-free form of strict liability that is found only within the very narrow domain of liability for abnormally dangerous activities. We conclude by defending these two features of the common law of tort: the strictness of the terms on which it defines wrongdoing and its begrudging willingness to recognize, in one special kind of case, liability without wrongdoing.

Suggested Citation

Goldberg, John C. P. and Zipursky, Benjamin C., The Strict Liability in Fault and the Fault in Strict Liability (November 17, 2016). 85 Fordham L. Rev. 743 (2016), Fordham Law Legal Studies Research Paper No. 2871328, Available at SSRN: https://ssrn.com/abstract=2871328 or http://dx.doi.org/10.2139/ssrn.2871328

John C. P. Goldberg (Contact Author)

Harvard Law School ( email )

Areeda 232
1545 Massachusetts Ave
Cambridge, MA 02138
United States
617-496-2086 (Phone)

Benjamin C. Zipursky

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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