January 24, 2012
The Duty to Rescue Examined
Posted by Gordon Smith

Having recently blogged about The Man in the Water, I was hooked rather easily on David Hyman's 2006 article, Rescue Without Law: An Empirical Perspective on the Duty to Rescue. Start here: "six times as many Americans lose their lives every year trying to rescue someone else than have lost their lives to a non-rescue in the past ten years combined."

Really? Are these numbers reliable? This is the most challenging issue for the paper. David taps various sources for accounts of rescues and non-rescues, but he readily admits the problem: "It is likely that there is under-reporting of both rescues and non-rescues, but the actual magnitude of such under-reporting cannot be quantified." On the other hand:

The number of verifiable instances of rescue exceeds the number of verifiable instances of non-rescue by approximately 800:1, and that ratio is based on multiple years and multiple independent data sources. It seems unlikely that the under-reporting ratio for nonrescues is so much larger than the under-reporting ratio for rescues to overcome this huge disparity in the number of verified cases.

Ok, I am not sure that will be convincing to all, but I am willing to play along. Assuming he is more-or-less right about the numbers, why do we care? Because they may change the way we think about this area of law:

The problem of non-rescue has attracted considerable scholarly attention over the past century. Every torts textbook features a section on the subject. More than a hundred law review articles and several books have been written on the subject, with dozens more touching on it in passing. These articles follow a consistent strategy of recounting the horrific details of a particular anecdote or two, and then offering vague generalities to the effect that the anecdotes illustrate a larger problem. None explore the typicality of such anecdotes, or attempt to specify the frequency of non-rescue and rescue. For most commentators, the inevitable conclusion is that there is a problem with non-rescue, for which “there ought to be a law.” The willingness of average Americans to rescue one another is typically discounted or dismissed entirely. Attention is called to the moral superiority of the European countries which have adopted a duty to rescue.

As you might imagine from the title, Hyman not only questions the existing scholarship on the duty to rescue, but he talks about Ellikson's Order Without Law, at least for a bit toward the end of the paper. Nevertheless, his conclusion there seems somewhat surprising: "'Rescue without law' is unlikely to be the result of social norms, because these patterns developed in the teeth of laws that encourage the opposite behavior, [and] they involve strangers who are unlikely to ever meet again.... Instead, research into behavioral psychology suggests that 'rescue without law' is most likely the result of 'hard-wired' altruism, which induces rescue even at significant personal risk."

There's lots more, but as you can see, I enjoyed reading this piece. Any law review article that calls into question the moral superiority of Europe is usually worth a little time.

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