Monday, October 22, 2007
Over at the Becker-Posner Blog, Professor Gary Becker and Judge Richard Posner have an interesting commentary on third party liability. Judge Posner kicks it off with "Should Hosts Be Liable For Serving Liquor To Guests Who Cause Accidents While Driving Under The Influence?":
A possible explanation for social host liability is that the combination of tort and criminal sanctions for dangerous behavior is not thought an adequate deterrent. More than a million drivers are arrested every year for driving under the influence, and there are those 16,000 or so annual deaths in accidents involving a driver who is driving under the influence. These figures in themselves do not prove anything, because it is necessary to weigh any benefits of an activity that causes potential harms, even potential fatalities, against those costs. But there is skepticism that people who drink so heavily and uncontrollably as to become a menace to other drivers and court arrest and prosecution for drunk driving are making utility-maximizing judgments. Suppose we think they are more like children than competent adults, and agree that parents should be liable for their children's vandalism if knowing their children's propensity to vandalize they fail to take reasonable steps to control them. Then there would be a strong argument for social host liability, provided the costs are not excessive. It would be akin to accomplice liability for selling a gun to a person who one had reason to think would use it to commit a crime. One would not want in a case such as that to rely on the existence of heavy criminal penalties to deter the buyer from using the gun to commit a crime. .... All these are examples of collective punishment, a term that simply means threatening to punish those who fail to prevent a harm that cannot be as efficiently prevented directly. It is a question of fact rather than (I think) of principle whether in particular circumstances collective punishment is an efficient method of minimizing harm.
Professor Becker responds that he "agrees with Posner that third party liability is desirable in some cases, but that class is narrow." Responding to Posner's comments on social host liability, Becker points out an enforcement problem, and that "[a] far more effective way for states to deter drunk driving is to target drunk drivers more closely and punish them more severely."