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43 Cardozo L. Rev. 2317 (2021-2022)
Just Strict Liability

handle is hein.journals/cdozo43 and id is 2399 raw text is: JUST STRICT LIABILITY Cristina Carmody Tilleyt 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 t Associate Professor, University of Iowa College of Law. Thanks to participants in the 2022 Harvard/Yale/Stanford Junior Faculty Forum; to Felipe Jiminez and participants in the Harvard Project on the Foundations of Private Law, Yale Center for Private Law, Yale Information Society Project Private Law and Emerging Technology Workshop; to participants in the Florida State University College of Law Faculty Workshop, Loyola University Chicago School of Law Faculty Workshop, USC Gould School of Law Legal Theory Seminar, SEALS Philosophy of AI Panel; University of Iowa Junior Faculty Workshop; and University of Iowa Faculty Workshop series; and to Christina Bohannan, Michelle Madden Dempsey, Thomas Gallanis, Mike Green, Gregory Keating, Alex Lemann, Robert Miller, Christopher Odinet, John Reitz, Christopher Robinette, Kenneth Simon, and Lea Vandervelde for thoughtful comments. I am grateful to Michaela Crawford and Stephen Hilfer for helpful research assistance and to the editors of Cardozo Law Review for outstanding editorial efforts. All errors remain my own. 2317

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