Rescue without law: An empirical perspective on the duty to rescue
2006; Texas Law Review Association; Volume: 84; Issue: 3 Linguagem: Inglês
ISSN
1942-857X
Autores Tópico(s)Criminal Justice and Corrections Analysis
ResumoI have always depended on the kindness of strangers.1 For almost two centuries, legal scholarship on the duty to rescue has proceeded on a sophisticated theoretical plane. Proponents of a duty to rescue have argued that it will increase the frequency of rescue without creating undue distortions or other difficulties. Opponents of a duty to rescue have argued that such statutes are ineffective, infringe on individual liberties, may actually discourage rescue, and are likely to be misused by politically ambitious prosecutors. No effort has been made to test any of these claims empirically, even though from a policy perspective the critical threshold question-how often do Americans fail to rescue one another in circumstances where only a generalized duty to rescue would require them to do so-is entirely factual. This Article provides the first empirical study of the no-duty rule in action. Using more than twenty independent data sources, the Article provides a and perspective on rescue and non-rescue that complicates-and sometimes is flatly inconsistent with-the positions of both proponents and opponents of a duty to rescue. The results paint a rich and largely reassuring picture of the behavior of ordinary Americans faced with circumstances requiring rescue and indicate that both more and less is at stake in the debate over the no-duty rule than has been commonly appreciated. Law professors and judges have been fascinated with the no-duty rule for theoretical reasons, but the ongoing debate should not obscure the reality that in the real world, rescue is the rule-even if it is not the law. I. Introduction The common law approach to rescue is straightforward. Absent a limited number of specific exceptions, there is no duty to rescue, regardless of the ease of rescue and the consequences of non-rescue.2 Indeed, by restricting the ability of rescuers to recover in tort for injuries they might suffer, the common law actually creates affirmative disincentives to rescue. Generations of law students have learned of the no-duty rule by reading hypothetical cases of babies who drowned in bathtubs and actual cases of people who drowned in ditches and lakes while bystanders did nothing. The no-duty rule may prevail in forty-seven of the fifty states,3 but it is distinctly unpopular. When a case of non-rescue becomes public, newspaper editorials and television commentators will denounce the indifference of bystanders. If the non-rescuers can be identified, they will be held up to public scorn. The responsible district attorney will reluctantly acknowledge that the criminal law is powerless in such cases while condemning the non-rescuers on moral grounds. If a tort case is actually brought against a non-rescuer, the judge will throw it out but note that the non-rescuer must answer to God for failing to act. Politicians will introduce legislation reversing the common law rule. Comparisons will be drawn to other infamous cases of non-rescue, such as Kitty Genovese.4 In short order, academic conferences and symposia will be held at which speakers will criticize the no-duty rule and the indifference of bystanders. Communitarians will suggest that Americans are insufficiently civic-minded. Social meaning scholars will suggest that the no-duty rule is sending the wrong expressive message. Feminists will decry the male orientation of tort law, with its emphasis on individual autonomy and rule-based decisionmaking. Psychologists and evolutionary biologists will report the insights derived from research on altruism and collective inaction. Corrective justice scholars will argue that the law should enforce common moral intuitions. Comparative law scholars will suggest the United States should follow the rest of the civilized world in adopting a duty to rescue. Law and economics scholars will debate whether the no-duty rule is efficient. Doctrinal scholars will debate the relative merits of criminal and tort sanctions in dealing with future non-rescues. …
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