Friday, September 10, 2010
Kenneth Simons (BU Law) has posted an article entitled "Statistical Knowledge Deconstructed." This piece looks like it will have important implications for mass torts. The piece seems to focus on the criminal context (what level of knowledge is required for culpability) but in mass torts we struggle with the problem of the creation of increased risk of injury but the difficulty of proving individual injury when the level of culpability Simons discusses (intent) is not at issue. Here is the abstract:
In a wide range of contexts, especially in criminal law and tort law, the law distinguishes between individualized knowledge (awareness that one’s act will harm a particular victim, e.g., X proceeds through an intersection while aware that his automobile is likely to injure a pedestrian) and statistical knowledge (awareness that one’s activity or multiple acts will, to a high statistical likelihood, harm one or more potential victims, e.g., Y proceeds with a large construction project that she predicts will result in worker injuries). Acting with individualized knowledge is generally much more difficult to justify, and is presumptively considered much more culpable, than acting with statistical knowledge. Yet the distinction is very difficult to explain and defend.
This article presents the first systematic analysis of this pervasive but underappreciated problem, and it offers a qualified defense of the distinction. Acting with statistical knowledge is ordinarily less culpable than acting with individualized knowledge, and often is not culpable at all. Expanding the spatial or temporal scope of an activity or repeating a series of acts might cause the actor to acquire statistical knowledge, but such an increase in scale ordinarily does not increase the level of culpability properly attributable to the actor. I articulate two invariant culpability principles, “Invariant culpability when acts are aggregated” and “Invariant culpability when risk-exposures are aggregated,” that formalize this idea.
Why is acting with individualized knowledge especially culpable? Part of the answer is the special stringency principle (SSP), a deontological principle that treats an actor as highly culpable, and treats his acts as especially difficult to justify, when he knowingly imposes a highly concentrated risk of serious harm on a victim. (Under SSP, speeding to the hospital to save five passengers, knowing that this will likely require killing a pedestrian in one’s path, is much harder to justify than speeding to the hospital to save one passenger, knowing that this creates a 20% chance of killing a pedestrian in one’s path.)
The analysis has a number of implications and is also subject to important qualifications: Notwithstanding the invariant culpability principles, if a faulty actor repeats his unjustifiable acts or expands his activity, that repetition sometimes reveals a new type of culpability: the defiance of moral and legal norms. Accordingly, a retributivist can indeed support a punishment premium for recidivists; in rare cases, when the actor possesses merely statistical knowledge but his conduct is extremely unjustifiable, the actor’s culpability is comparable to that of an actor with individualized knowledge; the higher culpability of acting with individualized knowledge is not explained by a supposed higher duty owed to “identifiable victims,” except insofar as that duty is a crude version of SSP; the decision by an actor to proceed with an activity after conducting a cost-benefit analysis is not, by itself, evidence of culpability, even if that analysis provides the actor with statistical knowledge that the activity will cause serious harm; a legal system can be legitimate even though legal actors within the system know that it will, as a statistical matter, punish the innocent.
ADL (h/t Torts Prof Blog)