When Empirical Legal Research Really Shines!
For thirty-two minutes of agony resulting in her death, Kitty Genovese cried for help in front of her own apartment building after being stabbed on the streets of Kew Gardens in New York City. Thirty-eight bystanders observed her being murdered and did nothing. The common law vindicates bystanders who have no special relationships with a victim when they fail to make even an easy rescue of someone in peril, let alone a potentially dangerous rescue. Traditionally, two arguments, among many, have been offered in defense of the common law: (1) it is an infringement on the individual's autonomy to require him to rescue people for whom he has no legal responsibility. (2) it's human nature to decline putting one's life on the line for strangers.
Two decades ago I rejected the first argument in "Beyond Good Samaritans and Moral Monsters" published, as a student Comment, in the UCLA Law Review. In that piece I make the following point. Those committed to individual autonomy, whether rational egoists or not, have dispositive reasons to embrace a general legal duty to rescue. Why? Because doing so furthers their autonomy-interests. When we ground of the general legal duty to rescue in a system of reciprocal rescues, one's chances of being rescued, should one need to be, are maximized. Consider, for instance, signing up for a organ donation system. Any individualist or rational egoist should embrace such a system in which the commitment to rescue a stranger is all one needs to ensure that one is rescued oneself, should the need arise.
Last week, Wesley Autrey jumped in front of a moving subway train to save the life of stranger. (And he's a New Yorker. Go figure!) Elizabeth Weeks posted "Duty to Rescue?" reporting this incident. Permit me to highlight one passage from her informative post below.
"[T]he Autrey incident offers a stunning rejoinder to the traditional no-duty principle. Moreover, it is a clear example of the result shown in David Hyman's recent Texas Law Review article. Contrary to popular perceptions and tort policy assumptions that people tend to avoid voluntary rescue of strangers, Hyman's empirical study concluded that, in fact, people commonly engage in not only cheap, easy rescues but also hazardous acts of heroism that would not be required by law and may not be justified in traditional cost-benefit terms."
Hats off to Elizabeth for her post, including the heads-up about Hyman's article. Empirical legal 
research of this sort is immensely valuable. Rather than supporting the conventional assumption that people, by nature, are disinclined to rescue strangers, this empirical research suggests the opposite. According to this data, people generally are not Bad-Samaritans. Despite danger to themselves, they often try to save strangers. Hence, for us bleeding hearts, one obstacle blocking the establishment of a general legal duty to rescue is overcome.
posted by Robert Justin Lipkin at 10:55 AM
4 Comments:
Sunday's Times had two nice follow-pieces on the topic of voluntary resuce and heroes. First, a bioethics piece offering scientific explanations for rescue behavior:
http://www.nytimes.com/2007/01/07/weekinreview/07buckley.html?ref=weekinreview
Second, a recently conducted five-question, on-the-street survey of New Yorkers, gauging when they would or wouldn't rush in to save a stranger:
http://www.nytimes.com/2007/01/07/nyregion/07courage.html
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Thanks to both of you for mentioning my empirical study on the duty to rescue, which is also available from http://ssrn.com/abstract=796384.
Lest the findings be taken as an implicit endorsement of imposing a duty to rescue, here is an excerpt from the conclusion of the article:
"Most scholars who have written on the no-duty rule in the past
two centuries appear to have believed that non-risky non-rescue was a
widespread problem—and that imposing a duty to rescue would result in
significant changes in behavior and social norms. The results presented in
this Article indicate that neither assumption was accurate and that injury and death among rescuers is a much more serious and frequent problem than nonrisky non-rescue. Future discussions of the merits of the duty to rescue might more profitably begin with the 'facts on the ground,' instead of moving immediately to theories of justice and obligation.
Of course, debates over the duty to rescue implicitly involve these
broader issues and theories, which is why cases of non-rescue are
prominently featured in torts textbooks and why legal scholars have been
arguing about such cases for more than two centuries. Yet, when neither the initial suppositions nor the expectations for change of proponents seem justified, it is fair to ask them what they believe is actually at stake when the issue of the duty to rescue is under discussion. More broadly, the results presented in this Article suggest that the standard 'instrumentalist'
conception of legal scholarship—in which a legal scholar identifies a
significant social problem, analyzes it, and then offers a policy prescription
to be implemented by government officials that promises to cure it—is
poorly suited to the problem of non-rescue. . .
Although the no-duty rule presents a vital intellectual puzzle for law
professors, judges, and philosophers, the rule has no detectable influence
on the behavior of ordinary people. Americans, motivated by the
imperfect obligations of beneficence, have proven themselves more than
up to the task of rescuing those in need, irrespective of whatever the law might happen to say on the subject. The evidence presented in this
Article simply does not support the received wisdom that there 'ought to
be a law' imposing a duty to rescue."
Just to avoid a possible misunderstanding of my enthusiasm for research suggesting that people often engage in rescues. I do not think that such research entails or even serves as "an implicit endorsement of imposing a duty to rescue." Rather, in my view, such research discredits the view that human nature makes legal obligations to rescue pointless, something along the lines of the Kantian requirement that "ought" implies "can," or maybe better put, for these purposes, "ought" implies "will." If empirical evidence suggests that people "have proven themselves more than up to the task of rescuing those in need," then appeals to the futility of laws requiring such behavior (arising from certain conceptions of human nature) are discredited. The heavy lifting of establishing a legal duty to rescue remains to be done.
Finally, in my view, a lot more is at stake than tort law when we argue over whether a civilized legal system should make certain kinds of rescues obligatory. And here I can't see how we can avoid tying the question of rescue to such grander notions as altruism, compassion, ethical obligation, justice, the relationship between law and ethics, and most importantly, the relationship between empirical and normative judgments.
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