In Artificial Intelligence, Judicial Evolution, and Insurance, Professor Renee Henson achieves her stated goal of “advanc[ing] scholarly and industry dialogue on how best to confront the mounting challenges of algorithmic risk.” We especially applaud her taking up our challenge to scholars to “recognize[] the interdependence of insurance and tort law development.” Moreover, she has done so in an area worthy of sustained attention, namely emergent artificial intelligence (“AI”) harms. The focus of Professor Henson’s article—“developing products liability lawsuits involving algorithmic tools”—is, however, much narrower than the promise of its bold title. Professor Henson provides a very detailed analysis of a handful of state and federal court cases in order to illustrate a trend in doctrinal case law, whereby courts have shifted from denying tort claims of AI-related harms outright, primarily on Communications Decency Act Section 230 or First Amendment grounds, to recognizing emotional distress and mental health harms as “product”-related harms worthy of courts’ consideration. But, alas, paradoxically, this signature contribution of her article is at the same time its weakness and ultimately defeats any aspiration to provide a generalizable framework for consideration of the interplay between tort liability and insurance of AI harms. The crux of our critique is that Professor Henson’s subject matter designation of products liability cases and limitation of AI harms to emotional and mental harm skew both her diagnosis of the problem of insurance “gaps” and her proposed solution of accelerating the development of affirmative coverage.

Citation
Kenneth S. Abraham & Catherine M Sharkey, Confronting AI Liability and Insurance, 106 Boston University Law Review, 1275 (2026).
UVA Law Faculty Affiliations