Abstract
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.
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I first argued for this unified conception of culpability in Larry Alexander, “Insufficient Concern: A Unified Conception of Criminal culpability,” 88 CAL. L. REV. 931 (2000). I then reiterated and elaborated on it in Larry Alexander, “Culpability,” in The Oxford Handbook of Philosophy (J. Deigh et al., eds., 2001): pp. 218–38, 227–30 and in Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law (2009), ch. 2.
See Alexander and Ferzan, supra note 1, at ch. 3.
See Heidi M. Hurd, “Finding No Fault with Negligence,” in Philosophical Foundations of the Law of Torts (J. Oberdiek, ed., 2014): pp. 387–405.
See Alexander and Ferzan, supra note 1, at ch. 3; Larry Alexander and Kimberly Kessler Ferzan, “Confused Culpability, Contrived Causation, and the Collapse of Tort Theory,” in Philosophical Foundations of the Law of Torts, supra note 3, pp. 406–25, 408–15.
In re Winship, 397 U.S. 358 (1970).
United States v. Carroll Towing Co., 159 F 2d 169 (US Ct of Apps, 2d Cir., 1947).
People v. Decina, 2 N. Y. 2d, 157 N. Y. S. 2d 558, 138 N. E. 2d 799 (1956).
See generally Larry Alexander, “Reconsidering the Relationship Among Voluntary Acts, Strict Liability, and Negligence in Criminal Law,” in Crime, Culpability, and Remedy (E.F. Paul et al., eds., 1990): pp. 84–104, 90–94.
See Larry Alexander, “Foreword: Coleman and Corrective Justice,” 15 HARV. J. LAW & PUB. POL’Y. 621, pp. 631–36 (1992).
See Larry Alexander, supra note 8, at pp. 98–101.
Here I continue a discussion begun in Larry Alexander, “Causation and Corrective Justice: Does Tort Law Make Sense?,” 6 LAW & PHIL. 1, pp. 17–21 (1987).
Mark Grady has made a similar point in several articles. See, e.g., “Why Are People Negligent? Technology, Nondurable Precautions, and the Medical Malpractice Explosion,” 82 NEV. U. L. REV. 293 (1988).
This is the so-called “information paradox” discussed by the famous economist Kenneth Arrow. See Kenneth J. Arrow, “Economic Welfare and the Allocation of Resources for Invention,” in The Rate and Direction of Inventive Activity (Nat’l Bureau of Econ Research ed., 1962), p. 609.
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Warren Distinguished Professor, University of San Diego School of Law. I want to thank the participants in the conference on Crime Without Fault at Georgetown University Law Center and especially John Hasnas for organizing it and inviting me.
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Alexander, L. Is There a Case for Strict Liability?. Criminal Law, Philosophy 12, 531–538 (2018). https://doi.org/10.1007/s11572-017-9428-7
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DOI: https://doi.org/10.1007/s11572-017-9428-7