The Unidentified Wrongdoer

• Publication year: 2022
• Citation: Vol. 56 No. 3

The Unidentified Wrongdoer

Ronen Perry
University of Haifa, rperry@law.haifa.ac.il

The Unidentified Wrongdoer

Cover Page Footnote
Professor of Law and Director, Aptowitzer Center for the Study of Risk, Liability, and Insurance, University of Haifa. I am grateful to participants in the 38th Annual Conference of the European Association of Law and Economics (2021) for useful comments on an earlier draft and to the editors of the Georgia Law Review for their exceptional editorial work.

THE UNIDENTIFIED WRONGDOER

Ronen Perry^*

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This Article addresses the untheorized and under-researched problems of strong unidentifiability in tort law—namely the victim's occasional inability to identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs—and bring an action against them. It offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine tort liability and frustrate its goals.
This Article first presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: (1) adherence to direct liability with creative procedural identification tools, (2) indirect liability of a third party with some control over the unidentified wrongdoer's conduct, (3) residual indirect liability, and (4) no causation-based liability.
This Article then turns to an economic appraisal of the competing models. It argues that, when tailoring solutions to strong unidentifiability problems, lawmakers should focus on four types of costs: (1) the cost to the victim of identifying the unknown wrongdoer using advanced procedural tools, (2) the cost to a third party of obtaining and retaining information about the wrongdoer's identity, (3) the cost (and expected impact) of precautions that a third party could take to reduce the likelihood of the wrongdoing, and (4) the cost of failing to prevent the wrongdoing (i.e., non-enforcement).
This Article outlines the selection principle, explains that its application is context-, jurisdiction-, and time-specific, and applies it to four common cases of strong unidentifiability: intentional violations of bodily integrity, life, or liberty by unknown perpetrators; injuries caused by defective products whose manufacturers are unidentified; anonymous online wrongdoing; and hit-and-run accidents.

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Table of Contents

I. Introduction................................................................895

II. The Legal Models......................................................899

A. DIRECT LIABILITY.....................................................899

1. Unknown Perpetrators of Intentional Torts Against the Person............................................899
2. Anonymous Speakers........................................905

B. INDIRECT LIABILITY..................................................910

1. Unknown Perpetrators of Intentional Torts Against the Person ............................................ 910
2. Anonymous Speakers........................................920
3. Unidentified Manufacturers.............................926

C. RESIDUAL INDIRECT LIABILITY.................................929

1. Unidentified Manufacturers.............................929
2. Anonymous Speakers........................................932

D. NO CAUSATION-BASED LIABILITY..............................935

III. An Economic Perspective......................................943

A. THE PROBLEM...........................................................943
B. THE SELECTION PRINCIPLE.......................................945

1. The Costs in Play..............................................945
2. The Competing Models.....................................950
3. Legal Design...................................................... 951

C. COMMENTS...............................................................953
D. APPLICATIONS..........................................................955

1. Unknown Perpetrators of Intentional Torts Against the Person ............................................ 955
2. Unidentified Manufacturers.............................957
3. Anonymous Speakers ........................................ 958
4. Hit-and-Run Drivers........................................962

IV. Conclusion...............................................................963

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I. Introduction

One of the most challenging obstacles to tort law enforcement is the victim's inability to identify the wrongdoer. Existing literature focuses on weak unidentifiability—i.e., cases in which the victim has reason to suspect, but cannot establish by a preponderance of the evidence, that a specific person's wrongdoing caused the victim's harm.¹ The law often solves such problems by shifting the burden of proof of causation (or wrongfulness) to the defendants, like under the alternative liability theory,² or by allocating the harm among several suspected injurers, as under the market share liability

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theory.³ These problems and their solutions have been widely researched⁴ and shall be put aside.

This Article instead addresses the untheorized and under-researched problem of strong unidentifiability: cases in which the victim cannot identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs, and therefore cannot bring an action against that person. The problem arises across the world in myriad tort settings, ranging from intentional violations of rights to pure accidents and from physical injuries to emotional distress. When a person is assaulted or wrongfully arrested by an unknown other, harmed by an unbranded defective product, or injured in a hit-and-run accident; when property is consumed by fire started by an unknown arsonist; or when a person's reputation or privacy is harmed by an anonymous speaker, the victim might be unable to find and sue the wrongdoer. Strong unidentifiability thus prevents liability and frustrates tort law's goals.

This Article offers a systematic analysis of possible legal solutions to strong unidentifiability problems and an efficiency-oriented framework for evaluating the proper use of these solutions. Part II presents the main legal models developed to overcome strong unidentifiability in different contexts and various legal systems. The first model is strict adherence to direct liability of the

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unidentified wrongdoer, facilitated by creative procedural identification tools.⁵ This model has famously been used in cases of civil rights violations by unknown federal agents,⁶ as demonstrated in the landmark Supreme Court case of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,⁷ and in the exceptional treatment of anonymous online wrongdoing in the United States.⁸ The second model is indirect liability of a third party who had some control over or other relation to the unidentified wrongdoer.⁹ Indirect liability may be fault-based, as in the classic tort law case of Kline v. 1500 Massachusetts Avenue Apartment Corp.,¹⁰ or strict, as in U.S. product liability law.¹¹ The third model is residual indirect liability, whereby only the wrongdoer can be held liable if a designated third party provides information about the wrongdoer's identity to the victim, and the third party is liable if it fails to provide such information.¹² This unique paradigm characterizes most product liability regimes around the world—the United States being a notable exception.¹³ The fourth model is giving up causation-based liability and devising alternative means

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of victim compensation.¹⁴ Currently, this model seems to be the near-universal approach to hit-and-run accidents.¹⁵

The analysis reveals not only the fact that different models are used in different contexts but also an interesting variance among legal systems in handling similar unidentifiability problems. Jurisdiction A may apply model M1 to setting S1 and model M2 to setting S2, while jurisdiction B applies model M2 to setting S1 and model M3 to setting S2. Part II could thus be structured in three ways—around the distinction between different models, different settings and contexts, or different jurisdictions. It takes the first path because its primary ambition is theoretical, rather than analytical or comparative.

Part III turns to an economic appraisal of the competing models. It argues that in tailoring solutions to strong unidentifiability problems lawmakers should focus on four types of costs: (1) the cost for the victim of identifying the unknown wrongdoer using advanced procedural tools; (2) the cost for an easily identifiable third party of obtaining and retaining information about the wrongdoer's identity; (3) the cost (and expected impact) of precautions a third party could take to reduce the likelihood of the wrongdoing; and (4) the cost of non-enforcement, which is roughly capped by the victim's expected harm (because without de facto liability no one has an incentive to prevent that harm).

According to the proposed selection principle, if the administrative cost of an action against the wrongdoer, including the cost of identification by the victim, is the lowest, the law should adhere to direct liability, provide advanced identification tools, and avoid indirect liability. If the administrative cost of such an action, including the cost of information for a third party and the reduced identification cost for the victim, is the lowest, the law should endorse a residual indirect liability regime. If the cost of prevention by a third party is the lowest, the law should impose exclusive indirect liability on the third party who could take the most cost-effective precautions against potential wrongdoing. If the above three costs are prohibitive, exceeding the cost of non-enforcement,

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lawmakers should give up causation-based liability and consider an external, easy-to-administer...