Band 12, Heft 2 -

Autonomous vehicles are widely expected to save tens of thousands of lives each year by making car crashes attributable to human error – currently the overwhelming majority of fatal crashes – a thing of the past. How the legal system should attribute responsibility for the (hopefully few) crashes autonomous vehicles cause is an open and hotly debated question. Most tort scholars approach this question by asking what liability rule is most likely to achieve the desired policy outcome: promoting the adoption of this lifesaving technology without destroying manufacturers’ incentives to optimize it. This approach has led to a wide range of proposals, many of which suggest replacing standard rules of products liability with some new system crafted specifically for autonomous vehicles and creating immunity or absolute liability or something in between. But, I argue, the relative safety of autonomous vehicles should not be relevant in determining whether and in what ways manufacturers are held liable for their crashes. The history of products liability litigation over motor vehicle design shows that the tort system has been hesitant to indulge in such comparisons, as it generally declines both to impose liability on older, more dangerous cars simply because they lack the latest safety features and to grant immunity to newer, safer cars simply because of their superior aggregate performance. These are instances in which products liability law fails to promote efficient outcomes and instead provides redress for those who have been wronged by defective products. Applying these ideas to the four fatalities that have so far been caused by autonomous vehicles suggests that just as conventional vehicles should not be considered defective in relying on a human driver, autonomous vehicles should not be immune when their defects cause injury.

Medical malpractice liability plays an important role in the healthcare system, as evidenced by the many studies finding that changes in malpractice liability risk induce changes in the delivery and consumption of care. Importantly, the effect of malpractice liability depends on who is held liable, and recent developments in the healthcare system have clouded which providers face the risk of liability in certain situations. In particular, as the United States continues to face a physician shortage, nurse practitioners (NPs) have assumed greater roles within the healthcare system. Their ability to provide care, however, depends on state scope-of-practice (SOP) laws which often mandate that physicians supervise NPs’ practices. These mandatory supervision laws can facilitate the ability of injured patients to use various familiar doctrines, e. g. respondeat superior and negligent supervision, to hold supervising physicians liable based on the acts of NPs. As healthcare becomes increasingly team-based and as NPs deliver more care traditionally provided by physicians, understanding the interaction between malpractice liability and SOP laws will become critical. This Article reports novel empirical evidence on the interplay between malpractice liability and SOP laws. Examining a unique dataset of the malpractice premiums charged to physicians in various specialties, I analyze the extent to which SOP laws requiring that physicians supervise the practices of NPs impact the malpractice liability risk faced by physicians. In general, eliminating physician supervision requirements reduce the malpractice risk faced by physicians (as measured by the premiums paid to insure against this risk) by 7.5 %. In addition to elucidating a previously unappreciated interaction between tort law and state SOP laws, this evidence suggests that the imposition of physician supervision requirements may blunt the role of tort law in deterring the provision of unsafe or low-quality care. If SOP laws facilitate the shifting of liability risk from NPs to physicians through various tort doctrines, then neither NPs nor physicians will be appropriately deterred. Indeed, reaching optimal deterrence for one group would necessarily imply suboptimality for the other. This Article reviews several options to address this problem and recommends removing physician supervision requirements from state SOP laws.

Aiding and abetting is a popular and well-known basis of criminal liability. Yet its civil counterpart, civil aiding and abetting, exists in relative obscurity. Like criminal aiding and abetting, civil aiding and abetting is of ancient origin, but it has only achieved contemporary popularity in particular niche areas like business torts and human rights statutes. In some states, it currently exists in a strange legal limbo, with perhaps some specific forms of civil aiding and abetting recognized (like aiding and abetting fraud), but with its status as a general fount of tort liability uncertain. This Article argues that the disregard for civil aiding and abetting is an error, as civil aiding and abetting can play an important role in remedying contemporary harms. Specifically, civil aiding and abetting can bridge gaps left by duty rules in negligence. This gap-filling function will be further enhanced if courts continue the nascent trend of accepting that in certain circumstances, a failure to act can be a form of substantial assistance. As our cultural understandings of complicity broaden, aiding and abetting can serve as an important tool for allocating responsibility and achieving just compensation. Although it is often mistakenly eclipsed by other forms of joint liability, civil aiding and abetting has significant independent value.

The tort of outrage has been sidelined in recent decades by judges and academics who question its legitimacy. This Article is an attempt to move outrage from the margins to the center of American tort law. It begins by unearthing the complex intellectual history that produced judicial skepticism about this tort. The Legal Realists who “invented” outrage made a strategic decision to condition liability on the “outrageousness” of behavior rather than to identify discrete acts as wrongful. This doctrinal indeterminacy was necessary to quell corporate opposition to the tort. Ultimately, however, it has led modern courts and scholars to label outrage as “inherently subjective” and therefore “disfavored.” The Article challenges this conventional view by proposing a scientific basis for distinguishing ordinary aggression from its outrageous counterpart. Neuroscience literature suggests that threats levelled with awareness of a target´s inability to follow through on the biologically reflexive fight or flight response produce physiologically maladaptive distress. In contrast, threats to which a target can freely respond produce benign, adaptive, stress. Consequently, defendant aggression is “outrageous” when it exploits a plaintiff’s known inability to execute a prosocial response. This science-based model of “outrageousness” provides a neutral baseline against which to evaluate the critique that the tort necessarily requires subjective evaluations of defendant behavior. When plaintiff paralysis results from external dynamics the defendant recognized and exploited, jurors need not assign priority to either the plaintiff’s or the defendant’s worldview to find a wrong. But when plaintiff paralysis results from internal feelings of powerlessness that may stem from race or gender experience, jurors must credit the plaintiff’s experience and disregard the defendant´s apparent ignorance of it in order to find a wrong, a process that appears to subjectively prioritize one worldview over another. So whether liability is objective or subjective in a given case turns on whether the impediment to plaintiff action was external or internal. In its concluding section, the Article undertakes an empirical examination of jury verdicts to determine the relative frequency of “objective” and “subjective” liability assignments. It finds that juries are most likely to assign liability in situations where plaintiff paralysis arose from external, objectively observable impediments recognized by defendants. In other words, outrage liability typically stigmatizes behavior that is objectively understood by both the defendant and the community at large to be antisocial. That said, juries occasionally assign liability where a woman or a person of color felt paralyzed by perceived powerlessness the defendant may not have appreciated. The Article ultimately suggests that this small but persistent segment of “subjective” verdicts – far from demonstrating the tort’s illegitimacy – highlights the social power of private injury law.