This book is a collection of original essays offering the first full-length consideration of the problem of strict liability in the criminal law: that is, the problem of criminal offences that allow a defendant to be convicted without proof of fault. Because of its potential to convict blameless persons, strict liability is a highly controversial phenomenon in the criminal law. Including Anglo-American and European perspectives, the contributions provide a sustained and wide-ranging examination of the fundamental issues. (...) The breadth and depth of the chapters combine to present readers with a sophisticated analysis of the place and legitimacy of strict liability in the criminal law. (shrink)

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. (...) Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance. But this analysis fails to appreciate the crime-control costs of strict liability. By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control. More importantly, the system’s lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms. Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law’s reputation for being just, which means avoiding the use of strict liability. (shrink)

This chapter discusses blameworthiness for problematic acts that an agent does inadvertently. Blameworthiness, as opposed to liability, is difficult to make sense of in this sort of case, as there is usually thought to be a tight connection between blameworthiness and something in the agent’s quality of will. This chapter argues that in personal relationships we should sometimes take responsibility for inadvertent actions. Taking on responsibility when we inadvertently fail in our duties to our loved ones assures them that (...) we respect them, take them seriously, and want to be respected and taken seriously in turn. The chapter ends with a defence of the claim that this is a genuine sort of blameworthiness. -/- . (shrink)

The article is a review of A.P. Simester, ed., Appraising Strict Liability. We strongly recommend the book for the sophistication of the contributors’ analyses, and the contribution the book makes to clarifying the normative issues at stake in strict liability legal regimes. The review focuses on the more philosophical essays in the book. The specific issues from the book identified in the review are: the rights-based character of the prohibition on conviction without moral fault; the importance (...) of the principle of proportionality; due diligence defences; the instrumental worth of strict liability in relation to quasi-criminal regulation; the faultiness of genuinely creating risks. (shrink)

This essay explores the case against strict liability offenses as part of the more general debate about proportional punishment. This debate takes on a very different look in light of a formal result derived by the authors elsewhere, that is briefly summarized and whose implications are pursued here. Traditional objections that consequentialists have mounted against the deontologists’/retributivists’ defense of proportionality fall by the wayside, but a new threat to the proportionality requirement replaces it: the ease with which any (...) such requirement can be circumvented. (shrink)

This article conceptualizes what strict liability is in the criminal law. Four properties are found to be individually necessary, only jointly sufficient, for there to be the kind of moral blameworthiness that must underlie any just punishment: prima facie wrongdoing, absence of justification, prima facie culpability, and absence of excuse. Whenever criminal liability is imposed without the presence of one or more of these properties, the liabuility is said to be strict.

Errata slip inserted. Bibliography: p. 137-140.

We argue in this essay that any society that organizes itself to punish criminals should in justice consider itself strictly liable to punish only those who are guilty in fact of the crimes for which they are punished. We argue that justice, not utility, is the basis of the obligation society has not to punish the innocent and that any society that is just would bind itself by statute to compensate the innocents it punishes by mistake. We hope to have (...) made it evident that when the justice of criminal punishment is the issue justice and strict liability are not incompatible; rather, we hope to have shown that one does not understand the nature of justice unless one recognizes that society is strictly liable and therefore owes compensation when, through no fault of its own, it punishes the innocent. (shrink)

Accidental infringement of copyright is a pervasive and largely ignored problem. In the twenty-first century, it has become increasingly easy to infringe copyright unintentionally. When such accidental infringement occurs, copyright law holds the user strictly liable. Prior literature has questioned whether the strict liability standard is normatively defensible. In particular, prior literature has asked whether the strict liability standard ought to be reformed for economic reasons. This Article examines the accidental infringement problem from a new perspective. (...) It considers whether it is fair to hold copyright users strictly liable for accidental infringements of copyright. This Article argues that the strict liability standard is not fair because it results in copyright users being held liable for accidents for which they are not morally responsible. Using the moral philosophy literature on responsibility, this Article explores our intuitions surrounding copyright’s liability standard in order to better understand why strict liability in this context seems “harsh” and “inequitable.” In turn, this provides an argument for reforming copyright’s liability rule and adopting a negligence standard. This Article then argues that, within the United States, the proposed reform to copyright’s liability rule should be accomplished by modifications to the existing fair use doctrine. (shrink)

Accidental infringement of copyright is a pervasive and largely ignored problem. In the twenty-first century, it has become increasingly easy to infringe copyright unintentionally. When such accidental infringement occurs, copyright law holds the user strictly liable. Prior literature has questioned whether the strict liability standard is normatively defensible. In particular, prior literature has asked whether the strict liability standard ought to be reformed for economic reasons. This Article examines the accidental infringement problem from a new perspective. (...) It considers whether it is fair to hold copyright users strictly liable for accidental infringements of copyright. This Article argues that the strict liability standard is not fair because it results in copyright users being held liable for accidents for which they are not morally responsible. Using the moral philosophy literature on responsibility, this Article explores our intuitions surrounding copyright’s liability standard in order to better understand why strict liability in this context seems “harsh” and “inequitable.” In turn, this provides an argument for reforming copyright’s liability rule and adopting a negligence standard. This Article then argues that, within the United States, the proposed reform to copyright’s liability rule should be accomplished by modifications to the existing fair use doctrine. (shrink)

Accidental infringement of copyright is a pervasive and largely ignored problem. In the twenty-first century, it has become increasingly easy to infringe copyright unintentionally. When such accidental infringement occurs, copyright law holds the user strictly liable. Prior literature has questioned whether the strict liability standard is normatively defensible. In particular, prior literature has asked whether the strict liability standard ought to be reformed for economic reasons. This Article examines the accidental infringement problem from a new perspective. (...) It considers whether it is fair to hold copyright users strictly liable for accidental infringements of copyright. This Article argues that the strict liability standard is not fair because it results in copyright users being held liable for accidents for which they are not morally responsible. Using the moral philosophy literature on responsibility, this Article explores our intuitions surrounding copyright’s liability standard in order to better understand why strict liability in this context seems “harsh” and “inequitable.” In turn, this provides an argument for reforming copyright’s liability rule and adopting a negligence standard. This Article then argues that, within the United States, the proposed reform to copyright’s liability rule should be accomplished by modifications to the existing fair use doctrine. (shrink)

A highly controversial issue in criminal law theory has been the use of strict liability offenses, i.e., offenses which create liability ‘without fault.’ The collection of strict liability offenses is varied according to the element of the particular offense with respect to which liability is strict. For example, a statute prohibiting the filing of a false financial statement with the Secretary of State might impose liability despite a reasonable error as to the (...) truth of the statement, or as to the financial nature of the statement, or as to the identity of the official in question. What all strict liability offenses have in common is the imposition of liability despite the possibility of reasonable mistake or due care regarding some important element of the offense. Generally, then, a strict liability offense is one to which a claim of no-negligence is not a defense. Indeed, such a claim will not even be heard. All that the prosecution need prove is the voluntary commission of the proscribed acts by the defendant; no other question concerning the defendant's efforts or opportunity to obey the law is relevant to liability or conviction. (shrink)

Questions regarding the moral responsibility of Internet accessand service providers relating to information on the Internetcall for a reassessment of the ways in which we think aboutattributing blame, guilt, and duties of reparation andcompensation. They invite us to borrow something similar to theidea of strict liability from the legal sphere and to introduceit in morality and ethical theory. Taking such a category in thedistribution of responsibilities outside the domain of law andintroducing it into ethics, however, is a difficult (...) thing. Doingso seems to conflict with some broadly shared and deeply feltintuitions regarding the individuality of responsibility and therelationship between responsibility and guilt. These convictionscoincide with some basic ideas in Kantian moral theory and theascriptive theory based on these ideas. Nevertheless, theproblems to which the proposed liabilities / responsibilitiesrelate are so serious that they do not seem to leave room foraloofness. At least, they encourage us to reconsider the idea ofstrict liability carefully and to assess its merits. (shrink)

I will discuss the relationship between two different accounts of remedial duty ascriptions. According to one account, the beneficiary account, individuals who benefit innocently from injustices ought to bear remedial responsibilities towards the victims of these injustices. According to another account, the causal account, individuals who caused injustices ought to bear remedial duties towards the victim. In this paper, I examine the relation between the principles central to these accounts: the Beneficiary Pays Principle and the well-established principle of Strict (...) Liability in law. I argue that both principles display a strong yet unexplored similarity as they make certain kinds of causal connection sufficient for incurring liability. Because of this similarity, I suggest that insights into the Beneficiary Pays Principle can be gained from exploring its relation with Strict Liability. In particular, I examine two new positive arguments that could be adapted to support of the Beneficiary Pays Principle: the Minimising Injustice Argument and the Normative Connection Argument. However, I’ll show that only one of those arguments, namely the Normative Connection Argument, can truly support the Beneficiary Pays Principle. I conclude that, if you endorse the Normative Connection Argument for Strict Liability, you have at least a strong prima facie reason to endorse the parallel argument for the Beneficiary Pays Principle. (shrink)

In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for (...) achieving deterrence through nonretributive penalties; and that with respect to tort liability, it is best justified as a means of defining insurance categories. (shrink)

The responsible corporate officer doctrine is, as a formal matter, an instance of strict criminal liability: the government need not prove the defendant’s mens rea in order to obtain a conviction, and the defendant may not escape conviction by proving lack of mens rea. Formal strict liability is sometimes consistent with retributive principles, especially when the strict liability pertains to the grading of an offense. But is strict liability consistent with retributive principles (...) when it pertains, not to grading, but to whether the defendant has crossed the threshold from noncriminal to criminal conduct? In this essay, I review the two most plausible arguments supporting an affirmative answer in the context of the RCO doctrine. First, perhaps this doctrine reflects a rule-like form of negligence, akin to a rule that prohibits selling alcohol to a minor. Second, perhaps this doctrine expresses a duty to use extraordinary care to prevent a harm. Neither argument is persuasive. The first argument, although valid in some circumstances, fails to explain and justify the RCO doctrine. The second argument, a duty to use extraordinary care, is also inadequate. If “extraordinary care” simply means a flexibly applied negligence standard that considers the burdens and benefits of taking a precaution, it is problematic in premising criminal liability on ordinary negligence. If instead it refers to a higher duty or standard of care, it has many possible forms, such as requiring only a very slight deviation from a permissible or justifiable standard of conduct, placing a “thumb” on the scale of the Learned Hand test, identifying an epistemic standard more demanding than a reasonable person test, or recognizing a standard that is insensitive to individual capacities. However, some of these variations present a gratuitous or incoherent understanding of “negligence,” and none of them sufficiently explain and justify the RCO doctrine. (shrink)

:Strict liability in tort law is thought by some to have a moral counterpart. In this essay I attempt to determine whether there is, in fact, strict liability in the moral domain. I argue that there is, and I critically evaluate several accounts of its normative foundations before suggesting one of my own.

States commit wrongs that demand redress. In her recent book, Avia Pasternak considers the circumstances under which it is legitimate to impose the cost of redress upon the state’s citizens at large. Her answer is that it is legitimate to impose reparative burdens on citizens only when they participate in their state intentionally, specifically, when they intend to play their part in maintaining state institutions. The book thus has revisionary implications for current international legal practice, given reparative burdens are currently (...) imposed upon states no matter their internal relations. The book’s persuasive argument will be of interest not only to scholars of normative political theory and social ontology, but also international legal theorists. That said, its core claim that citizen participation must be ‘genuine’ would benefit from further specification through future scholarship. (shrink)

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is (...) proportionate for such an actor? Should he be punished as harshly as an intentional or knowing killer? This article offers a framework for analysing these difficult questions. After rejecting a broad forfeiture justification for strict liability in grading, it articulates a more promising set of arguments, premised on the actor’s ‘change of normative position’ by choosing to commit a crime. Three principles of culpability sometimes justify strict liability in grading: holistic culpability, attention to the degree of unjustifiability of the risk, and rough comparability in culpability. Strict liability in grading can be appropriate when the risk of committing the more serious crime (i) is a risk intrinsic to the less serious crime or (ii) is minimally foreseeable. The article also addresses the relevance of moral luck, ie the principle that the fortuitous occurrence of a result or circumstance increases the actor’s just deserts. Even if moral luck is recognized, it cannot fully justify strict liability in grading. (shrink)

The author investigates the necessity of fault as the prerequisite of contractual civil liability. The author makes the conclusion that Lithuanian law, following most of the countries belonging to the civil law tradition and contrary to the common law systems, as well as Vienna convention, UNIDROIT principles, PECL and DCFR, begins with the theory that fault is a requirement for contractual liability. Strict liability in Lithuanian law is the exception of this general rule. Nevertheless, the author (...) argues that the general rule is subject to important exceptions, and the practical importance of these exceptions is as great as the cases falling within the general rule. In case of no agreement of the parties or any provision of law regarding fault as the necessary prerequisite for contractual liability, in Lithuania, similar to France, the distinction between the obligations to produce a given result and the obligations to use reasonable care is essential: according to Article 6.200(4) of the Lithuanian Civil Code (hereinafter – the CC), a party in breach of an obligation to use best efforts is liable for fault. (shrink)

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is (...) radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists. In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability. (shrink)

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is (...) proportionate for such an actor? Should he be punished as harshly as an intentional or knowing killer? This article offers a framework for analysing these difficult questions. After rejecting a broad forfeiture justification for strict liability in grading, it articulates a more promising set of arguments, premised on the actor’s ‘change of normative position’ by choosing to commit a crime. Three principles of culpability sometimes justify strict liability in grading: holistic culpability, attention to the degree of unjustifiability of the risk, and rough comparability in culpability. Strict liability in grading can be appropriate when the risk of committing the more serious crime (i) is a risk intrinsic to the less serious crime or (ii) is minimally foreseeable. The article also addresses the relevance of moral luck, ie the principle that the fortuitous occurrence of a result or circumstance increases the actor’s just deserts. Even if moral luck is recognized, it cannot fully justify strict liability in grading. (shrink)

The American tort system regularly conducts a sort of lottery in which plaintiffs try to name as many defendants in a tort action as they can in order to collect a large judgment from at least one of them. This procedure is encouraged under strict joint and several liability, which permits plaintiffs to recover greater damages from defendants - usually businesses - with less moral culpability for the tort than poorer defendants, who bear greater culpability. In a case (...) involving the Disney Corporation and a negligent amusement park rider, for instance, Disney was forced to pay 86% of the court award to the plaintiff, even though the jury found the company to be only 1% liable for the injury. The legal principle of joint and several liability violates morality in several different ways. Even though the principle appears to be better in the short run for plaintiffs, I will show that it fails not only to satisfy utilitarianism, but compensatory justice as well. Hence, the legal principle of joint and several liability should be eliminated in favor of a better, fairer law, which I will briefly sketch at the end. (shrink)

In this paper I examine the most common objection to strict product liability: that it is unfair to manufacturers. Critics have maintained that it is unfair because it allows manufacturers to be held liable even when they have not been negligent, and are not morally blameworthy or at fault. In response to this objection, I argue 1) that there are in fact cases in which it is at least somewhat unfair to manufacturers to impose compensation requirements upon them (...) in accordance with the strict product liability doctrine, but 2) that there is also a class of cases in which it is fair to manufacturers to hold them responsible for compensating injured product users, as strict product liability requires, even though they have not been negligent and are not morally blameworthy or at fault. My analysis of the fairness issue provides a basis for some concluding remarks about the defensibility of the strict product liability doctrine. (shrink)

This essay proposes a way of dealing with the strict liability of Internet sellers of other manufacturers’ products, such as Amazon under its ‘Fulfillment by Amazon’ program. I discuss and reject two approaches to the problem that have been proposed by the courts, and advance a view according to which the relevant inquiry is whether Internet intermediaries such as Amazon could have prevented a defective product from reaching the US market. This view accounts in a satisfactory manner for (...) the notion of responsibility that is at the core of US strict products liability law, and avoids the pitfalls of alternative policies. However, since this view also entails a de facto quasi-immunity to lawsuits for Internet intermediaries in many cases, safeguards to that quasi-immunity are also addressed. While the essay focuses on US law, the principles and policies under discussion should be applicable in other jurisdictions as well. (shrink)

This article elaborates upon and defends the distinction between “primary duty” claims and “primary liability” claims in private law introduced in a previous article. In particular, I discuss the relevance of the distinction to the debates over fault and strict liability and “duty skepticism” and to the relationship between primary and remedial rights. I argue that the tendency to assume that all claims in private law arise from a breach of duty is a source of error and (...) confusion. As a prelude to the discussion, I set out an analysis of a claim or remedial right in private law as a Hohfeldian power correlated with a remedial liability. I also consider whether primary-liability claims can be formulated in terms of the legal relations found in Wesley Hohfeld's scheme, and I make some general comments about Hohfeldian analysis. (shrink)

On the strict liability view, excusably ignorant agents must cover all the wrongful costs they have inadvertently brought onto others, although it is undisputed that they are not at fault. On the fault liability view, victims need not be compensated by excusably ignorant harmers. To some, both views appear harsh. Under fault liability, those who cause harm are seen as getting off scot-free while victims suffer. Under strict liability, agents are viewed as being burdened (...) without any fault of their own. In response to a seemingly intractable conflict between competing theories, some have called for compromise. Caney :210, 2010) has proposed a “modified strict liability principle” which was further developed by Bell :391–411, 2011). The principle’s revision is promising because it gives substantive reason for why and how middle ground should be achieved. In this paper, I assess this proposal and the prospects for mediating between strict and fault liability more generally. Specifically, I introduce concepts, present Bell’s principle of limited liability, critique it, and explore general avenues for finding middle ground between strict and fault liability. (shrink)

In this long-awaited book, Antony Duff offers a new perspective on the structures of criminal law and criminal liability. His starting point is a distinction between responsibility (understood as answerability) and liability, and a conception of responsibility as relational and practice-based. This focus on responsibility, as a matter of being answerable to those who have the standing to call one to account, throws new light on a range of questions in criminal law theory: on the question of criminalisation, (...) which can now be cast as the question of what we should have to answer for, and to whom, under the threat of criminal conviction and punishment; on questions about the criminal trial, as a process through which defendants are called to answer, and about the conditions (bars to trial) given which a trial would be illegitimate; on questions about the structure of offences, the distinction between offences and defences, and the phenomena of strict liability and strict responsibility; and on questions about the structures of criminal defences. The net result is not a theory of criminal law; but it is an account of the structure of criminal law as an institution through which a liberal polity defines a realm of public wrongdoing, and calls those who perpetrate (or are accused of perpetrating) such wrongs to account. (shrink)

Private law is generally formulated in terms of rightduty relation at all but on a or liability” relation. A primary-liability claim is not a claim arising from the breach of a strict-liability duty. The recognition of primary-liability claims does not involve skepticism about duties or rules or legal relations and it is consistent with the analysis of private law in terms of corrective justice.

We compare the performance of liability rules for managing environmental disasters when third parties are harmed and cannot always be compensated. A firm can invest in safety to reduce the likelihood of accidents. The firm’s investment is unobservable to authorities. The presence of externalities and asymmetric information call for public intervention in order to define rules aimed at increasing prevention. We determine the investments in safety under No Liability, Strict Liability, and Negligence rules, and compare these (...) to the first best. Additionally, we investigate how the ability of the firm to fully cover potential damage affects the firm’s behavior. An experiment tests the theoretical predictions. In line with theory, Strict Liability and Negligence are equally effective; both perform better than No Liability; investment in safety is not sensitive to the ability of the firm to compensate potential victims. In contrast with theory, however, prevention rates absent liability are much higher and liability is much less effective. (shrink)

There is a well-established social practice whereby we hold one another responsible for the things that we say. Speakers are held liable for the truth of the contents they express and they can be sanctioned and/or held to be unreliable or devious if it turns out what they say is false. In this paper chapter we argue that a better understanding of this fundamental socio-linguistic practice – of ascribing what we will term (following Borg (2019)) ‘linguistic liability’ – helps (...) to shed light on a core debate in semantics and pragmatics, concerning how and where to draw the line between different kinds of content. We suggest that attributions of linguistic liability form a heterogenous (rather than a homogenous) class and seek to show that different kinds of liability judgements are useful because they track divergent kinds of content – specifically the kinds that have come to prominence in recent theorising theorizing about the semantics/pragmatics divide. (shrink)