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Doing Wrong Without Creating Harm


*John M. Darley, Department of Psychology, 2-S-11 Green Hall, Princeton University, Princeton, NJ 08540. Darley is Warren Professor of Psychology; Solan is Don Forchelli Professor of Law and Associate Dean for Academic Affairs, Brooklyn Law School; Kugler is a Ph.D. student, Department of Psychology, Princeton University; Sanders is A.A. White Professor of Law, University of Houston Law Center.


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.