Document Type

Working Paper

Publication Date

5-15-2020

SSRN Discipline

InfoSciRN Subject Matter eJournals; Information & Library Science Research Network; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Management Research Network; Economics Research Network; Legal Scholarship Network; Law School Research Papers - Legal Studies; Corporate Governance Network; Law & Society eJournals; Law & Society: Private Law eJournals; Criminal Justice Research Network; Information Systems & eBusiness Network; Health Law eJournals

Abstract

Collective liability "” defined as the imposition of liability on a group that may include innocent actors "” is commonplace From ancient to modern times legislators regulators and courts have imposed such liability when they believe that the culprit is a member of the group Examples of collective liability abound from surgical teams held jointly liable for a misplaced sponge to entire families evicted from their homes for drugrelated activity of a single person under the "one strike" rule Courts recognize of course that collective liability punishes the innocent but they view it as a necessary evil to smoke out and punish an unknown wrongdoer in a known groupbr brDespite the ubiquity of collective liability regimes they remain undertheorized and understudied Proponents of collective liability justify its imposition on two grounds First claims of deterrence suggest that the threat of collective liability incentivizes innocent actors to monitor each other and take preventative measures The second claim is that once a harm occurs potential liability will encourage innocent actors to share information that would identify the wrongdoer br brDrawing on economic theory and empirical evidence this Article sheds light on the dark side of collective liability It concludes that disconcertingly collective liability regimes may lead to contrary results and perverse outcomes Through clear examples this Article reveals that collective liability can 1 erode actors' incentives to monitor and take preventative measures 2 incentivize those knowledgeable about the culprit's identity to keep quiet lie or even plot with others to lie and 3 help service providers eg physicians engage in new unnoticed forms of harmful practices Fortunately many of the faults of collective liability are remediable This Article provides a straightforward and practical proposal that would minimize strategic behaviors reduce the detrimental effects of collective liability and bypass the identification problem altogether This will offer a new path in medical malpractice housing evictions assault larceny and a variety of other cases that are subject to group liabilitybr

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