This Article asserts that traditional tort law should be modified to provide for a duty to act in situations in which a reasonable person would act altruistically. Part I examines traditional and more recent tort doctrine governing the duty to aid. Part II discusses compassion from philosophical, literary, and mythological points of view and explores how these viewpoints inform compassion's possible relationship to a legal duty to help. Part III considers the connections between psychological theories and studies of action, altruism, and empathy. In addition to Batson's work, I reexamine the classic studies of Latan6 and Darley and the application of their conclusions to the debate about the duty to help. I then analyze legal theorists' discussions of a duty to help in light of the psychological evidence, concluding that while some proposals for modifying the traditional rule are consistent with the psychological evidence, both scholars and courts need to consider more factors than they have so far. Most notably, Latané and Darley's work, showing that a group of bystanders who know each other are more likely to act than an individual bystander, suggests that courts should consider the number of bystanders present and their relationship to one another. Batson's work further suggests that tort law should consider the extent to which an actor under a particular set of circumstances could be expected to feel empathy for another.
Finally, Part IV urges judges and other lawmakers who shape tort rules regarding action to open their eyes to the human capacity for compassionate action. Courts slavishly tied to a model of behavior based on egoistic, self-interested motivations reinforce that model, while Batson's work reveals the limitations of that model given the prevalence of empathically-induced altruistic action. Courts and other policy makers should recognize altruistic action not only as possible and desirable but, in fact, reasonable. In deciding cases and writing laws they must focus on those factors psychologists have determined are most likely to influence a person to help others.
Thomas C. Galligan Jr.,
Aiding and Altruism: A Mythopsycholegal Analysis,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol27/iss2/4