Document Type

Working Paper

Publication Date

7-30-2020

SSRN Discipline

Experimental & Empirical Studies eJournals; LSN Subject Matter eJournals; CJRN Subject Matter eJournals; Legal Scholarship Network; Criminal Law & Procedure eJournals; Philosophy Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Private Law eJournals; Law & Society: Public Law eJournals; Criminal Justice Research Network; Political Science Network; Environmental & Natural Resources Law eJournals; Anthropology & Archaeology Research Network

Abstract

Courts and scholars assume that group causation theories eg concerted action deter wrongdoers This article empirically tests and rejects this assumption using a series of incentivized laboratory experiments Contrary to common belief data from over 200 subjects shows that group liability can encourage tortious behavior and incentivize individuals to act with as many tortfeasors as possible Surprisingly we find that subjects can be just as likely to commit a tort under a liability regime as they would be when facing no tort liability Group liability can also incentivize a tort by making subjects perceive it as fairer to victims and society These findings are consistent across a series of robustness checks including both regression analysis and nonparametric tests br brWe also test courts"™ and scholarly insistence that the butfor test fails in cases subject to group causation We use a novel experimental design that allows us to test whether and to what extent each individual"™s decision to engage in a tortious activity is influenced by the decisions of others Upending conventional belief we find strong evidence that the butfor test operates in group causation settings eg concurrent causes Moreover in our experiments subjects"™ reliance on butfor causation produced the very tort that group liability attempted to discourage br brA major function of liability in torts criminal law and other areas of the law is to deter actors from engaging in socially undesirable activities The same is said about doctrines that result in group liability Our empirical results challenge this basic logic

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