Toward Coherence in Civil Conspiracy Law: A Proposal to Abolish the Agent's Immunity Rule
55 Pages Posted: 18 May 2011
Date Written: May 17, 2005
Theories of secondary liability, such as conspiracy and aiding and abetting, have gained renewed prominence in light of recent rashes of corporate financial fraud, and gain particular importance where the primary wrongdoers are bankrupt or otherwise judgment-proof. This Article traces the development of civil conspiracy and aiding and abetting claims, and argues that the current "agent’s immunity rule" utilized in some jurisdictions - which immunizes agents from such liability if acting within their official capacity - fails to promote the policies underlying agency law, conspiracy law, or substantive tort law. The current rule should be replaced by a test which focuses directly on whether the agent possessed the requisite scienter to be held liable for the act of another, and the liability of the entity for which the agency acted should be separately assessed based on principles of vicarious liability.
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