Cardozo Law Review
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 long-standing strict liability for activities like blasting, but 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.
The Article starts with a baseline proposition: tort constructs communities by facilitating care between their members. How so? Communities want their members to maximize self-interest while minimizing other-harm. The ability to do this arises from human neurocognition. Specifically, community members are able to gather sensory data about others in the same problem space, leverage tacit knowledge to contextualize others’ likely behaviors, and adapt their goal pursuits in real time to avoid imminent injuries. The rules of tort surface these steps in the neurocognitive sequence and formalize the community expectation that members will follow them. For example, without explicitly referring to neurocognitive concepts, many negligence doctrines nevertheless isolate incompetent perception, contextualization, and action as signifiers of carelessness. On a cognitive theory of relational care, community members can also wrong their counterparts by delegating relational labor to instrumentalities unable to perceive, contextualize, or act as a human would. Actors who use these instrumentalities as relational replacements are consciously renouncing the ability to give authentic care. Consequently, even when reasonable, such delegations are relational failures. A justice version of tort activates strict liability to order compensation for the harms they cause.
Understood as a law of relational justice, tort is fully equipped to deal with even the most disruptive technologies. The Article makes this case using as examples three AI innovations now populating modern life: autonomous vehicles, robot journalists, and facial recognition technologies. These nonhuman instrumentalities serve drivers, publishers, and police in a way that seems reasonable and nonnegligent in the aggregate. But they have already caused death, defamation, and racially biased arrest—all without serious regulatory discipline. A justice version of tort built around the obligation to exercise human relational cognition can determine—objectively and publicly—whether contested AI applications are failing the community. When actors use these technologies to supplement their relational labor (think driver-assisting cars), they retain ultimate control and the ability to give authentic care. In these cases, a negligence rule will identify wrongfulness by searching for incompetent execution of the cognitive sequence. But when actors use these technologies to replace their relational labor (think driverless cars), they forfeit ultimate control and renounce the ability to give authentic care. Even when the technology at issue is efficient and low risk, a strict rule will identify this renunciation of the care obligation as a distinct kind of wrongdoing. Justice theorists have been “embarrassed” by strict liability for too long. Identifying the relational wrong at its core may fortify tort to do justice in the coming era of delegated care.
Keywords
Strict Liability, Torts, Proof, Legal Practice and Procedure
Disciplines
Law | Torts
Recommended Citation
Cristina C. Tilley,
Just Strict Liability,
43
Cardozo L. Rev.
2317
(2022).
Available at:
https://larc.cardozo.yu.edu/clr/vol43/iss6/6