ABSTRACT
Today a growing chorus of voices in the tort-law literature sings a siren song. AI harms must be redressed through across-the-board strict liability, they croon – the same standard we apply to dynamite users, lion tamers, and faulty-chainsaw makers. Their rationale is understandable: at first blush, many AI harms appear impervious to other traditional theories of tort. In what sense might a self-driving car be negligent? Or how might one prove that an AI’s neural network – a ‘black box’ filled with billions or trillions of inscrutable numbers – is defective under a products-liability theory?
But tempting though strict liability may be, this article argues that categorically applying it to AI harms would be a mistake – and that in fact, many such harms should have no tort-law remedy at all. This assertion is less controversial than it sounds, and aligns comfortably with a range of philosophical bases for tort liability including economic efficiency, corrective justice, and civil recourse. For non-tortious harms, insurance markets – current and future – are well equipped to fill any compensatory voids. And where an AI activity presents the potential for catastrophic harm, tailored, domain-specific legislation will be the right tool for the job.
Henderson, Zachary, Rethinking Robot Liability (July 1, 2025). Forthcoming, 67 Boston College Law Review.
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