When Empirical Legal Research Really Shines!

Written by Robert Justin Lipkin on January 10th, 2007

For thirty-two minutes of agony resulting in her death, Kitty Genovese cried for help in front of her 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 of the individual’s autonomy to require him or her to rescue people absent a special relationship. (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, by 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!) Over at Ratio Juris, Elizabeth Weeks posted “Duty to Rescue?” reporting this incident. Permit me to highlight one passage from her informative post. .

[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 r imageimmensely valuable. Rather than supporting the conventional assumption that people, by nature, are disinclined to rescue strangers, this empirical research strikes back. 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 on Ratio Juris on 9 January 2007


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