This Article examines the civil liability of actors who encourage others to behave badly, thereby causing harm. The analysis distinguishes between individual encouragers and business-entity encouragers. Individuals most often intend for the bad behaviors and the consequential harms to occur—witness cheerleaders at a gang rape. This Article advocates stern treatment of such mean-spirited malcontents. On the one hand, if their encouragement is a but-for condition of the others’ harm causing bad behavior, they should be subject to liability based on traditional intentional tort. On the other hand, if their encouragement is not a but-for condition, this essay proposes an exception to the no duty-to-rescue rule that exposes such encouragers to liability. Regarding business entities charged with encouraging bad behavior—witness pharmaceutical companies that allegedly encourage opioid abuse—this essay argues against expanding existing exposures to liability. Commercial distributors of goods and services typically do not intend for the bad behaviors or the harms to occur; thus plaintiffs typically charge them with negligent marketing rather than intentional tort. A major reason for caution in regard to business entities is the invariable tendency of plaintiffs’ lawyers to expand new theories of tort, such as negligent marketing, into systems of strict enterprise liability. While arguably defensible in theory, in actual practice court-made enterprise liability is unmanageable, inefficient, and unfair. Thus, even as this essay advocates expanding the liabilities of individuals who encourage bad behavior in nonbusiness settings, it argues against doing so with respect to commercial entities who distribute and promote goods and services. The former, with few exceptions, deserve to be held civilly liable. The latter, in most instances, do not.

Included in

Torts Commons