Abstract As AI systems increasingly perform tasks with limited human oversight, courts will soon be required to determine how negligence law should respond when autonomous AI agents cause personal injury. Traditional foreseeability doctrine, as many scholars have observed, may fail to account for the opacity and unpredictability that characterize these systems. The main challenge could arrive when AI developers claim that a harmful outcome was unforeseeable because the specific causal pathway was novel, complex, or obscure. This article argues that such reasoning misallocates responsibility. Building on recent scholarly work, it takes the view that opacity and unpredictability are not inherent features of advanced AI systems. Rather, they are the result of abstraction choices made by AI developers, who often prioritize accuracy and efficiency over interpretability and predictability. When those choices increase the likelihood of opaque or unexpected outcomes, the legal framework should be adjusted to reflect that responsibility. In particular, where the foreseeability standard in negligence law typically makes it difficult for plaintiffs to prevail, it should be relaxed in their favor. The article examines how U.S. courts apply foreseeability across duty, breach, and proximate cause, and identifies the duty stage as the most urgent point for reform. It proposes a three-part doctrinal framework for cases involving personal injury caused by autonomous AI agents. First, courts should preserve existing law where foreseeability is already sympathetic to plaintiffs. Second, they should replace overly fact-intensive duty inquiries with clear, plaintiff-friendly categorical reasoning. Third, they should retain fact-intensive analysis at the breach and proximate cause stages to prevent overextension of liability. This approach maintains foreseeability as a meaningful constraint while calibrating it to the distinctive risks posed by autonomous AI agents.
The evaluation of bodily injury is one of the most complicated areas of tort law. How should the value of a human limb be determined, and what are the relevant parameters for doing so? Rules for appraising personal injury invite a review of fundamental value-based questions about human nature and social structure. For example, one must contemplate whether the body’s organs have an intrinsic value embedded in them, or whether an instrumental value to achieve benefits; is it appropriate to estimate the value of human body organs through the lens of the earning capacity latent in them, or perhaps as part of one’s dignity and social status; is the rich person’s hand equal in the eyes of tort law to poor person’s hand, a man’s hand to a woman’s hand or there is a distinct value for the limbs of each individual. This article compares the approaches of three legal systems: Roman law, Jewish law and modern (American) law. I argue that each of these three legal traditions developed distinct methods for evaluating bodily injury, which reflect unique conceptions of human nature and social structure. For that purpose, a careful analysis of both monetary damages and non-pecuniary damages according to these legal systems is needed, with emphasis on their socio-economic ramifications. An in-depth examination of the arrangements offered by these legal traditions enable us to station a critical mirror to modern society.
This article integrates the concept of moral progress – here, moral improvement in the thinking and behavior of individuals over time – into the study of legal doctrine. The article first presents a naturalistic account of what moral progress is and describes three of its most historically and analytically important forms: (1) moral circle expansion , (2) moral domain expansion , and (3) increasing sensitivity to proportionality . The article then analyzes three historical developments in U.S. tort law that qualify as instances of moral progress: (1) the partial demise of the “suicide rule” beginning around the 1980s (according to the article, an episode of moral circle expansion), (2) the liberalization of recovery for emotional harm in the negligent infliction tort beginning around the 1970s (moral domain expansion), and (3) the near-total replacement of contributory negligence by comparative negligence throughout the twentieth century (increasing sensitivity to proportionality). The article ends by outlining three legal scholarly implications of the analysis. (1) Legal scholars may be able to use the concept of moral progress as a criterion for making internal as opposed to external criticisms of tort law. (2) Attending to historical moral progress in an area of law facilitates sounder assessment of the area’s present-day moral value. (3) Studying moral progress in legal doctrine can identify open legal historical questions about historical legal actors’ motives. More generally, this article can inform legal scholars who seek to analyze morally progressive or regressive change in any area of law.
This paper addresses one kind of tort duty that is owed by one kind of platform. With respect to the latter, I focus on platforms that aim to bring about “real world” interactions, such as Lyft/Uber, Airbnb, and Tinder/Grindr. With respect to the former, I focus on the duty to protect users from the attacks of other users and/or third parties. Rather than argue that such platforms incur this kind of duty on grounds of current tort doctrine, I argue that a new doctrine is justified according to which the relevant platforms incur a duty to protect against the actions of others by virtue of their distinct nature as intermediators.
The emergence of the metaverse and spatial computing, which has enabled immersive digital interactions, raise complex legal questions. This work examines the feasibility of addressing dignitary torts – such as battery and intentional infliction of emotional distress – committed via avatars. The particular challenge for tort law is the nonphysical nature of self-representations in these virtual spaces. Drawing from the historical evolutions of several dignitary torts, such as the law of battery and emotional harm, this article argues that the key in allowing for the recognition of such harms is appreciating the expansion of the protection of physical body within these torts, to the protection of a broader concept of the “self.” By this, tort law has demonstrated both its willingness and capacity to recognize new forms of wrongs without sacrificing its core principles. Accordingly, this essay lays the groundwork for recognizing harms in virtual spaces and offers several initial considerations for dignitary tort liability regime and the extension of the self in extended reality spaces. Bridging the gap between evolving technology and traditional tort law is a must in a world where virtual interactions are carrying increasingly real consequences.
