Just Strict Liability

73 Pages Posted: 18 Feb 2022 Last revised: 4 Mar 2022

See all articles by Cristina Tilley

Cristina Tilley

University of Iowa - College of Law

Date Written: February 3, 2022

Abstract

Theorists who contend that tort is designed to do justice cannot explain strict liability. The strict sector plagues these scholars because it extracts payment from defendants who have acted reasonably and are therefore considered innocent. If tort is about wronging and recourse, then strict liability makes no sense. Stymied, justice theorists have ceded the sector to economically minded counterparts who are concerned primarily with efficient market outcomes. As this theory has taken hold, some have declared strict liability “dead.” This Article offers a justice theory of the interpersonal wrong that permits liability in the absence of traditional fault; namely, the delegation of relational labor to inanimate, care-insensitive, instrumentalities. These delegations may be efficient and low-risk, but they are genuine wrongs because they treat relational counterparts as unworthy of authentic human care. This theory not only explains longstanding strict liability for activities like blasting, it also has the power to address the modern wrong of injury-by-algorithm. Indeed, as the regulatory state permits market scions to replace real relationships with artificially intelligent ones, tort may be the only body of law able to guarantee that technology serves society and not the opposite.

Keywords: legal theory, tort, strict liability, cognitive psychology, machine learning, autonomous vehicles, robot journalism, facial recognition technology, New Private Law

JEL Classification: k13

Suggested Citation

Tilley, Cristina, Just Strict Liability (February 3, 2022). Cardozo Law Review, Forthcoming, U Iowa Legal Studies Research Paper No. 2022-03, Available at SSRN: https://ssrn.com/abstract=4034943

Cristina Tilley (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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