The Strict Liability in Fault and the Fault in Strict Liability

October 26, 2016

Tort scholars have long been obsessed with the dichotomy between strict liability and liability based on fault or wrongdoing.  We argue that this is a false dichotomy.  Torts such as battery, libel, negligence, and nuisance are wrongs, yet all are “strictly” defined in the sense of setting objective and thus quite demanding standards of conduct.  We explain this basic insight under the heading of “the strict liability in fault.”  We then turn to the special case of liability for abnormally dangerous activities, which at times really does involve liability without wrongdoing.  Through an examination of this odd corner of tort law, we isolate “the fault in strict liability”—that is, the fault line between the wrongs-based form of strict liability that is frequently an aspect of tort liability and the wrongs-free form of strict liability that is found only within the very narrow domain of liability for abnormally dangerous activities.  We conclude by defending these two features of the common law of tort:  the strictness of the terms on which it defines wrongdoing and its begrudging willingness to recognize, in one special kind of case, liability without wrongdoing.

November 2016

No. 2