Liability Reconsidered: Experimental Evidence (with Cherie Metcalf and Brock Stoddard)

In 2014, blooms of toxic algae—the result of pollutants released by multiple actors—turned
Lake Erie into a lethal hazard. For three days, half a million residents in Toledo, Ohio could
not drink, cook, or bathe without risking their lives. Boiling water was ineffective against
the toxins. Unable to find recourse, Toledo residents took action. In 2019, they gave rights
to the lake and empowered residents to sue on its behalf. Holding more injurers liable, they
hoped, would rectify the problem. It did not. Lake Erie’s tragedy and Toledo’s unusual
solution reflect a systemic problem. The regular rules of liability break down when there
are multiple injurers, as in the case of polluting factories, surgical teams, and group
violence.
Our goal in this Article is to propose and test a number of novel rules for assigning liability
that can more effectively deter group wrongdoing. In these proposed regimes, as in real
life, liability and damages are uncertain. While courts and scholars often treat uncertainty
as an evil, this Article shows that uncertainty can be harnessed to more effectively prevent
group wrongdoing. Our unique experimental design also allows us to empirically test how
cognitive biases impact actors’ decisions to commit a tort. Although biases due to framing
have been the subject of many studies, the impact of the framing of liability regimes has
never been theorized or tested before with multiple injurers. Data from our large-scale
study shows that the proposed rules enjoy significant advantages. These rules are better
able to deter undesirable activities, easier to apply, and can even remedy important
discriminatory features that plague the judicial process. These findings offer a new path to
determining and allocating responsibility in torts, Title VII, corporate and environmental
law, and other areas of the law involving multiple actors.