Doing Wrong Without Creating Harm
Article first published online: 19 FEB 2010
© 2010 Cornell Law School and Wiley Subscription Services, Inc.
Journal of Empirical Legal Studies
Volume 7, Issue 1, pages 30–63, March 2010
How to Cite
Darley, J. M., Solan, L. M., Kugler, M. B. and Sanders, J. (2010), Doing Wrong Without Creating Harm. Journal of Empirical Legal Studies, 7: 30–63. doi: 10.1111/j.1740-1461.2009.01169.x
- Issue published online: 19 FEB 2010
- Article first published online: 19 FEB 2010
We investigate lay intuitions about the appropriate compensatory and retributive consequences of a wrongdoer putting another in harm's way when harm either does or does not result. Compensation tracked whether the harm actually occurred, though when harm has not yet occurred but might, participants prefer an escrow-like solution in which money will be available to the victim only if the risk matures into actual harm. Retributive sanctions (punitive damages, fines, prison terms) were largely unaffected by whether the harm materialized but were instead sensitive to whether the wrongdoer exhibited negligent or reckless conduct. Thus, subjects clearly differentiated between the retributive nature of punitive sanctions and the compensatory nature of restorative damages. Finally, subjects often assigned liability to the actor even when the risk-causing actions were not negligent—and in this way preferred a strict liability stance more than does the current legal doctrine.