International responsibility law today is in great need of theorizing or, at least, that is the present volume’s argument. This introduction sets the stage for that argument. It unfolds in four steps: first, it clarifies the reasons that led to putting this collection of essays together and explains what it hopes to achieve; second, it introduces the main theoretical challenges addressed in the volume; third, it provides some information about how the book is organized; and, finally, it sketches out the content of its successive chapters and their articulation.

Since the second AI revolution started around 2009, society has witnessed new and steadily more impressive applications of AI. The growth of practical applications has in turn led to a growing body of literature devoted to the liability issues of AI. The present text is an attempt to assess the current state of the law and to advance the discussion.

The rapid development of robotics and intelligent systems raises the issue of how to adapt the legal framework to accidents arising from devices based on artificial intelligence (AI) and machine learning. In the light of the numerous legal studies published in recent years, it is clear that ‘tort law and AI’ has become one of the hot topics of legal scholarship both in national and comparative contexts.

The autonomy inherent in AI systems brings legal challenges. The reason is that it is no longer possible to predict whether and how explanations and actions emanating from AI systems originate and whether they are attributable to the AI system or its operator. The core research is whether the operator of AI systems is contractually liable for the damage caused by its malfunctioning. Is contract law sufficiently prepared for the use of AI systems for contract performance? The answer is provided through a review of the common law, CISG and the German Civil Code (BGB).

Tort law has a number of systems and structures by which the system will be used to address the challenges posed by AI technologies. It will not be necessary to significantly alter our understanding of tort law’s foundations to be ready for AI, and this may significantly and potentially affect AI innovation and utilization.

Allocation of liability for harm caused at least partially by AI or medical robot can be based upon a binary distinction. The binary is the distinction between substitutive and complementary automation. When AI and robotics substitutes for a physician, strict liability is more appropriate than standard negligence doctrine. When the same technology merely assists a professional, a less stringent standard is appropriate. Such standards will help ensure that the deployment of advanced medical technologies is accomplished in a way that complements extant professionals’ skills, while promoting patient safety.

Relying chiefly on the combination of costly, unsystematic, and unreliable FDA monitoring and state negligence actions, the current postapproval system for controlling medical device risks falls far short of assuring optimal levels of safety. The reform proposal we advance comprehensively addresses these law enforcement deficiencies. The contemplated changes are straightforward and simple to implement yet would substantially reduce cost while increasing the effectiveness of both FDA monitoring and civil liability deterrence. Monitoring would be improved by requiring first-party insurers to investigate and report to the FDA the potential existence of a causal connection between the personal injury for which they are funding treatment and the patient’s (insured’s) use of or exposure to a medical device. The FDA would be authorized to enlist DOJ Civil Division enforcement of a federal cause-based strict liability action against the medical device manufacturer. The manufacturer would bear liability in full, with no reduction for risk contributions from the injured patient or other parties and would pay damages in total to the US Government. We explain the regulatory advantages of this new regulatory rule of cause-based strict liability relative to conventional rules of negligence and strict liability.

This chapter defends the existence of negligence, understood here as a form of inadvertent moral wrongdoing for which the wrongdoer is presumptively and non-derivatively responsible and blameworthy. The wrong in question is failure of due care. This common-sensical claim needs defense in view of widespread skepticism about the possibility of non-derivative inadvertent wrongdoing. A major source of this skepticism is the conviction that all wrongdoing must ultimately derive from intentional or knowing violations.

The IoT raises several questions germane to traditional products liability law and the UCC’s warranty provisions. These include how best to evaluate and remedy consumer harms related to insecure devices, malfunctioning devices, and the termination of services and software integral to a device’s operations. Consider that the modern IoT vehicle with an infotainment system generates massive quantities of data about drivers, and that mobile applications can be used to impact the operations of these vehicles.

The birth of strict products liability is often traced to Justice Roger Traynor's famous concurrence in Escola v. Coca-Cola Bottling Co. In that case, the California Supreme Court allowed recovery to a waitress who had been injured when a coke bottle exploded in her hand. Although the majority based its decision on the evidentiary doctrine of res ipsa loquitur, Justice Traynor took the opportunity to present an argument for imposition of strict liability which relieves plaintiffs of proving negligence in products liability cases. The rewritten feminist concurrence joins Traynor's approach but provides additional gender, race, and class rationales for imposing strict liability in order to strengthen consumer protection and workplace safety. Situating the case in its World War II context, the feminist concurrence discusses the pressing need for providing tort protection to new classes of minority and female workers who had recently entered the work force and to consumers who had been encouraged to purchase a growing array of consumer goods. The accompanying commentary explains the legal evolution from negligence to strict product liability and delves into the facts and the people behind the case.

Lisa M. v. Henry Mayo Newhall Memorial Hospital exemplifies the reluctance of many courts to impose vicarious liability in cases of employee sexual abuse, treating cases of sexual abuse differently from other cases. The California Supreme Court in Lisa M. ruled against a pregnant patient who had been sexually molested by a hospital technician under the guise of performing an ultrasound examination. The court determined that the assault was “outside the scope of employment,” not fairly attributable to the employer, and the result only of “propinquity and lust.” The rewritten feminist opinion recharacterizes the assault as an outgrowth of employment, emphasizing that the employee exercised job-created control and power over plaintiff’s body. Because sexual assaults are not uncommon in the healthcare setting, the feminist opinion regards the assault as foreseeable and would allow a jury to determine whether vicarious liability is warranted because the assault was committed within the scope of employment. The accompanying commentary situates the case at the intersection of sexual violence and women’s health and examines how job-created power can make a patient vulnerable to harm by medical professionals.

Within the last decade, the Supreme Court has made two telling observations. First, vicarious liability is ‘on the move’ (per Catholic Child Welfare Socy v Institute of the Brothers of the Christian Schools (Child Welfare Socy)1); and second, ‘[t]he risk of an employee misusing his position is one of life’s unavoidable facts’ (per Mohamud v WM Morrison Supermarkets plc2). To that, add the Court of Appeal’s recent observations that employers do not ‘[become] insurers for violent or other tortious acts by their employees’ (per Bellman Northampton Recruitment Ltd3); but that ‘there will indeed be cases of independent contractors where vicarious liability will be established’ (per Barclays Bank plc v Various Claimants4).

In Chapter 5, Meritor Savings Bank, FSB v. Vinson and Oncale v. Sundowner Services deal, respectively, with the proof standards for sexual harassment and the question of whether and when Title VII forbids same-sex harassment. The rewritten Meritor dramatically alters the standard for employer liability, holding employers strictly liable for sexual harassment by supervisors, with no affirmative defense. Rewritten Oncale concludes that same-sex harassment (and hence harassment based on sexual orientation and gender identity) are illegal sex discrimination that occur “because of sex.” By making employers strictly liable, the rewritten Meritor would have effectively precluded hundreds of subsequent lower court cases and two Supreme Court cases. While the original Oncale openly refused to relate the egregious harms that the plaintiff had allegedly suffered, the rewritten opinion employs feminist storytelling techniques to demonstrate the harms suffered by the male plaintiff at the hands of his male coworkers. It explains that harassment by men of other men often occurs because of societal pressures on men to prove their masculinity and to police the boundaries of sex and sexuality.

Science fiction writers have frequently wrestled with questions relating to the ability of humans to understand the minds of robots and synthetic intellects. These works often portray robotic minds as functioning differently from those of humans. In some cases, analysis of someone’s mental processes and responses to specific situations is the only way to distinguish a human being from a robot. For example, one prominent protagonist in Isaac Asimov’s I, Robot collection of short stories is Dr. Susan Calvin, who is described as being a trailblazer the field of robot psychology. In Asimov’s stories, Dr. Calvin is the head “robopsychologist” for the fictional firm U.S. Robots and Mechanical Men, Incorporated. When a politician named Stephen Byerley runs for mayor of an unnamed major US city, Dr. Calvin is asked to determine if Byerley is a human being or a robot.