The Case Against Collective Liability
62 Boston College Law Review 391 (2021)
63 Pages Posted: 15 May 2020 Last revised: 1 Mar 2021
Date Written: May 14, 2020
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 the drug-related 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 group.
Despite the ubiquity of collective liability regimes, they remain under-theorized and under-studied. 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.
Drawing 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 (e.g., physicians) engage in forms of harmful practices not heretofore known. Fortunately, in certain situations, some of the faults of collective liability are remediable. This Article provides a practical proposal that would minimize strategic behaviors, reduce the detrimental effects of collective liability, and bypass the identification problem altogether. This proposal offers a new path in medical malpractice, civil rights violations, assault, larceny, and a variety of other cases that are subject to group liability.
Keywords: collective liability, group liability, communal liability, res ipsa loquitor, frankpledge, one strike rule, medical malpractice, offensive medicine, defensive medicine, induced demand, collusion, information forcing, information extraction, deterrence, monitor, innocent parties, multiple actors
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