Just Strict Liability

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