Tort Law at the Frontier of Artificial Intelligence

Abstract

The frontier of contemporary AI development is dominated by AI systems built on foundation models—highly versatile algorithms, trained in the first instance on broad swaths of data, that can function as speakers, tools, and agents across a wide variety of commercial, social, military, and political domains. For the moment, at least, the process of developing and releasing foundation models is subject to anemic ex ante regulation. Until that changes, it is largely the common law of torts—our society’s most general legal mechanism for governing serious risks of physical injury—that will govern the frontier of AI development. This Article offers an in-depth conceptual, doctrinal, and normative examination of tort liability for foundation-model development and release. It provides a qualified defense of the tort of negligence, the common law’s most general and flexible cause of action, as the principal doctrinal foundation of the tort system’s governance of this novel domain.