Abstract
Products liability law was built for a world of gears, levers, and physical failure. It now confronts a marketplace dominated by software, data, algorithms, and artificial intelligence—objects that do not break, shatter, or wear out, but nevertheless cause real and sometimes catastrophic harm. Courts and commentators increasingly respond to this tension by asking whether these digital systems are “product-like” enough to be squeezed into existing strict liability frameworks. This Article argues that this is the wrong question.
The Article traces the historical foundations of strict products liability; explains why courts have traditionally excluded intangibles from its reach; and examines recent judicial, regulatory, and scholarly efforts to erode that boundary—often through “product-by-analogy” reasoning. It then shows why those efforts produce doctrinal distortion and policy risk, particularly when strict liability is imposed on technologies that replace fallible human decision-making with safer automated systems.
Rather than advocating wholesale inclusion or categorical immunity, this Article calls for doctrinal restraint and conceptual clarity. Products liability law should not be stretched beyond recognition to govern electronic intangibles simply because they are ubiquitous or powerful. A distinct, carefully calibrated framework for electronic intangibles liability is needed—one that preserves the safety-driven aims of products liability while acknowledging that the digital age demands different tools. Clinging to analog rules for a digital world risks incoherence, over-deterrence, and the misallocation of responsibility at exactly the moment the law most needs precision.
Repository Citation
James M. Beck and Alexander M. Deguire,
Toward a Framework for a Law of Electronic Intangibles Liability,
109 Marq. L. Rev. 995
(2026).
Available at: https://scholarship.law.marquette.edu/mulr/vol109/iss3/5