Gabriel Weil (Touro University – Jacob D. Fuchsberg Law Center) has posted Abnormally Dangerous Algorithms: The Case for Strict Liability at the AI Frontier on SSRN. Here is the abstract:
As advanced AI systems gain autonomy, they will increasingly cause real-world harms to nonusers: people who neither deployed the system nor chose to interact with it. Existing tort categories do not cleanly allocate these losses, because many serious AI harms arise from residual, hard-to-eliminate risks rather than from readily provable negligence. This Article argues that severe third-party harms from alignment failure are a core case for strict liability. Victims do not consent to the risk; the risk may remain highly significant even with reasonable care; and strict liability better calibrates activity levels and loss-spreading while preserving incentives for safety investment. Doctrinally the Article develops two complementary paths for courts to reach that result without recognizing AI legal personhood or presuming new legislation: (1) treating the training and deployment of sufficiently capable systems as an abnormally dangerous activity when catastrophic residual risks persist despite reasonable care, and (2) adapting vicarious-liability principles to impute “tortious-for-a-human” model conduct to the appropriate principal. Normatively, the Article identifies a striking convergence: competing tort theories—law and economics, fairness- and reciprocity-based accounts, and leading wrongs-based theories—converge on strict liability for third-party alignment harms while diverging outside this core. This convergence transcends ideological divides, grounding strict liability in fundamental shared commitments across tort theory’s competing traditions. Practically, the framework is administrable and institutionally modest, reallocating loss without creating AI-specific duties. The Article translates these principles into statutory language forming the basis for strict-liability bills introduced in New York and Rhode Island, demonstrating immediate legislative viability.
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