2018 Monsanto Lecture
Thursday, April 12, 4 p.m. Benson Classroom
Catherine M. Sharkey
Crystal Eastman Professor of Law
NYU School of Law
Institutional Liability for Employees’ Intentional Torts: Vicarious Liability as a Quasi-Substitute for Punitive Damages
Modern day vicarious liability cases often address the liability of enterprises and institutions where agents have committed intentional acts. Increasingly, when corporations or employers are sued, the line is blurred between the principal’s vicarious liability and its own direct liability.
From an economic deterrence perspective, the imposition of strict liability vicarious liability induces employers to adopt cost-justified preventative measures, including selective hiring and more stringent supervision and discipline, and, in some instances, to truncate the scope of their business activities. Negligence-based direct liability likewise induces employers to adopt cost-justified preventative measures (without constraining activity levels to the degree that strict liability does). This raises two questions: why doesn’t direct employer negligence liability suffice, in terms of deterring employees’ intentional torts? And conversely, so long as there is strict liability vicarious liability is there any need for direct negligence liability at all?
I argue that vicarious liability will have an edge over direct employer negligence liability to the extent that there is a significant risk of under-detection of the failures of an employer’s preventative measures. Traces of this under-detection rationale for vicarious liability can be found in the academic literature and court decisions, but it warrants further attention. It has the potential to serve as a coherent framework for some modern doctrinal debates, including whether punitive damages should be imposed either vicariously or directly upon employers when their employees commit intentional torts.
Catherine M. Sharkey Bio:
Professor Catherine M. Sharkey is the Crystal Eastman Professor of Law at the NYU School of Law. She is a leading expert on the economic loss rule, punitive damages, and federal preemption. She has published dozens of articles in the fields of torts, product liability, and administrative law. Professor Sharkey is a co-author with Richard Epstein of Cases and Materials on Torts (11th ed. 2016) and co-editor with Saul Levmore of Foundations of Tort Law (2nd ed. 2009). She is a founding member of the World Tort Law Society and an elected member of the American Law Institute. Professor Sharkey is an appointed public member of the Administrative Conference of the US and an adviser to the ALI Restatement Third, Torts: Liability for Economic Harm. She was a 2011-12 Guggenheim Fellow. Professor Sharkey received a BA in economics summa cum laude from Yale University. A Rhodes Scholar, she received an MSc, with distinction, in economics for development from Oxford University, and a JD from Yale Law School, where she was Executive Editor of the Yale Law Journal. She served as a law clerk to Judge Guido Calabresi of the US Court of Appeals for the Second Circuit and Justice David H. Souter of the US Supreme Court.
The event has been approved for (1) CLE credit.
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