The Catholic University of America

CUA Law Associate Dean Marin Scordato's article "Innocent Threats, Concealed Consent, and the Necessary Presence of Strict Liability in Traditional Fault-Based Tort Law", 37 Pepp L. Rev. 205 (2010), has been cited by University of Chicago Law Professors Aziz Z. Huq and Genevieve Lakier in their Harvard Law Review article "Apparent Fault", 131 Harv L. Rev. 1525 (2018).

Apparent Fault

By: Aziz Z. Huq and Genevieve Lakier
From: 131 Harv L. Rev. 1525 (2018).

Federal substantive criminal law and constitutional remedies might seem to be distinct bodies of law. But since the closing decades of the twentieth century, the Supreme Court has demonstrated an increasing unwillingness in both areas to impose either direct or indirect sanctions on persons who violate the law but whose conduct is not necessarily indicative of an unlawful or antisocial intent. Instead, the Court has tended to narrow liability or remedy to instances in which there is evidence that the regulated actor contravened not just the law on the books but also a social understanding of legality. We call this supervening criterion for individual criminal or civil liability an apparent fault requirement. This Article documents the contemporaneous rise of an apparent fault requirement across two domains of Supreme Court jurisprudence and explores its causes as well as its effects. We argue that the demand for apparent fault is likely to make some kinds of coercive regulation less costly even as it imposes an inhibiting tax on other species of state intervention. Rather than diagnosing apparent fault’s rise as an endogenous product of legal reasoning, we situate it within a broader historical and intellectual context as a way of showing the value of understanding doctrine in the context of its sociocultural moment.

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Click here to view Scordato's article.



Associate Dean Martin R. Scordato's
Areas of Expertise

Tort Law

Agency Law


Legal Education

For additional information about our professors' areas of speciality, see the Catholic University Experts page.