Strict versus negligence software product liability

The law of products liability in tort is designed to maintain a reasonable balance between the inevitable social costs and the benefits of innovative product technologies. Technological development must be supported not only for the best interests of the public but also the side effect namely product defect into one of the following: (1) manufacturing defect; failures to correctly implement safety measures from the design; and (2) design defects: failures of the design itself to exhibit socially acceptable levels of safety. Software has been described as an artifact with fundamentally different properties than other engineered artifacts. This article will discuss several issues such as identifying the features of high technology products which lead to difficulties in applying traditional tort notions to them

The Federal Information Security Management Act of 2002: A Potemkin Village

Due to the daunting possibilities of cyberwarfare, and the ease with which cyberattacks may be conducted, the United Nations has warned that the next world war could be initiated through worldwide cyberattacks between countries. In response to the growing threat of cyberwarfare and the increasing importance of information security, Congress passed the Federal Information Security Management Act of 2002 (FISMA). FISMA recognizes the importance of information security to the national economic and security interests of the United States. However, this Note argues that FISMA has failed to significantly bolster information security, primarily because FISMA treats information security as a technological problem and not an economic problem. This Note analyzes existing proposals to incentivize heightened software quality assurance, and proposes a new solution designed to strengthen federal information security in light of the failings of FISMA and the trappings of Congress’s 2001 amendment to the Computer Fraud and Abuse Act

Punishing Artificial Intelligence: Legal Fiction or Science Fiction

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI causes certain types of harm and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where it is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement of a guilty mind. Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show how a coherent theoretical case can be constructed for AI punishment. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime

Accidents Waiting to Happen: Liability Policy and Toxic Pollution Releases

Proponents of environmental policies based on liability assert that strict liability imposed on polluters induces firms to handle hazardous wastes properly. We run regressions relating unintended pollution releases to strict liability imposed on polluters, exploiting variation across states and over time in the liability provisions of state mini-Superfund laws. Strict liability reduces the frequency and severity of pollution releases, provided it is modeled endogenously with the latter. Its effects vary with firm size. Partially sheltered from liability, small firms may have specialized in riskier production processes, but their number has not necessarily grown in response to the states’ liability policy.strict liability, negligence, hazardous waste, state environmental policy, endogenous policy adoption

Two Economists, Three Opinions? Economic Models for Private International Law - Cross Border Torts as Example

Many agree that private international law does a poor job of leading to good and predictable results. Can law and economics bring more scientific, objective foundations to the discipline? Economics, one may hope, can bring the conclusiveness to the field that doctrine could not. But even a fleeting review of existing studies reveals a discrepancy of views or economic approaches that mirrors the discrepancy in the traditional private international law doctrine. This article sets out to test whether different models lead to different outcomes. It makes arguments in three economic models - a private law model, an international law model, and a model combining the two. The subject area for this analysis is private international law of torts, more specifically the question of the law applicable to cross-border torts. The result is that the debate whether private international law is private law or (public) international law is replicated in the economic analysis of private international law. Rather than resolve problems of private international law, economic analysis reformulates them. This does not make economic analysis useless at all, but it puts into question its promise of objective neutral solutions

Property Rules, Liability Rules, and Immunity: An Application to Cyberspace

This Article sets out a theory of torts and cyberspace wrongs. My goal is to provide a sparse theoretical account of tort law and apply it to cyberspace torts, both negligent and intentional. I approach this goal by applying the framework of property rules and liability rules to cyberspace torts. That framework suggests that trespass doctrine is appropriate in instances of cyber invasions of private information resources, such as the breaking of codes to access private information on the web. However, trespass doctrine should play no role in cyber-invasions of public information resources, such as the sending of spam email. I also examine indirect liability claims against operating system sellers or Internet Service Providers for the harms caused by cyberspace actors (e.g., virus writers, copyright violators). The theory presented here suggests that the basis for strict indirect liability is weak. Finally, the theory suggests that immunity rules should play a role in this area, though in a smaller set of instances than those protected by the Communications Decency Act

Property Rules, Liability Rules, and Immunity: An Application to Cyberspace

This paper sets out a theory of torts and cyberspace wrongs. Its goal is to set out a sparse theoretical account of tort law and apply it to cyberspace torts, both negligent and intentional. I approach this goal by applying the framework of property rules and liability rules to cyberspace torts. That framework suggests that trespass doctrine is appropriate in instances of cyber-invasions of private information resources, such as the breaking of codes to access private information on the web. However, trespass doctrine should play no role in cyber-invasions of public information resources, such as the sending of spam email. I also examine indirect liability claims against operating system sellers or internet service providers for the harms caused by cyberspace actors (e.g., virus writers, copyright violators). The theory presented here suggests that the basis for strict indirect liability is weak. Finally, the theory suggests that immunity rules should play a role in this area, though in a smaller set of instances than those protected by the Communications Decency Act