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The Death of Strict Liability

Peter M. Gerhart

Case Western Reserve University School of Law

March 2007

Case Legal Studies Research Paper No. 7-12

The concept of strict liability has important theoretical significance but almost no analytical or doctrinal traction. In fact, at least in the realm of abnormally dangerous activities, the function of "strict liability" should be, and is being, replaced by an analysis that examines the reasonableness of the an actor's choice of where, when, how and how often to do an activity - that is, an activity level reasonableness analysis. The cases that have been thought to be "strict liability" cases in fact can be understood as activity level reasonableness cases and courts are increasingly using reasonableness analysis to determine whether an activity is abnormally dangerous. This movement away from a doctrinally empty concept of strict liability is an important movement toward a more unified, coherent, and analytically sound concept of the reasonable person.

Number of Pages in PDF File: 74

Keywords: Strict liability, activity level reasonableness analysis, positive law theory, normative law theory, torts, non-intentional torts, negligence liability, frequency level decisions, fault

JEL Classification: K10, K13

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Date posted: March 28, 2007  

Suggested Citation

Gerhart, Peter M., The Death of Strict Liability (March 2007). Case Legal Studies Research Paper No. 7-12. Available at SSRN: https://ssrn.com/abstract=976405 or http://dx.doi.org/10.2139/ssrn.976405

Contact Information

Peter M. Gerhart (Contact Author)
Case Western Reserve University School of Law ( email )
11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-5469 (Phone)
216-368-2086 (Fax)

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