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Unpublished Paper
The Death of Strict Liability
ExpressO (2007)
  • Peter M. Gerhart, Case Western Reserve University
Abstract This article argues that strict liability is an unjustified and superfluous doctrine. The law ought to collapse strict liability into the negligence concept by asking whether the injurer made unreasonable decisions about where, when, how, and how often to undertake activity. My analysis disputes several assertions from the economic analysis of strict liability, particularly the assertion that all harmful frequency level decisions ought to be the source of liability and the assertion that the reasonableness test is not robust enough to challenge wrongful activity-based decisions. Normatively, I argue that both deontic and consequential justice require that losses be shifted to the injurer only if the injurer has made an unreasonable decision. Positively, I argue that courts have largely substituted activity-based fault liability for no-fault liability and I show that the outcome of strict liability cases can be, and is being, justified under a reasonableness test. The article not only advances a unified and coherent theory of responsibility, it also suggests a theory of legal reasoning to explain why strict liability developed despite its analytical deficiencies. Briefly, this theory posits that judges decide cases based on their intuition about justice and then supply non-justificational reasons to explain the outcome. Once the analytical and justificational structure of unreasonable activity based decisions became known, courts saw that the strict liability category was unnecessary and began to abandon it. Strict liability is therefore dead in modern tort law.
Publication Date
August, 2007
Citation Information
Peter M. Gerhart. "The Death of Strict Liability" ExpressO (2007)
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