The Article addresses the untheorized and under-researched problem 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 him or her. This Article offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine liability and frustrate its goals.
Part I presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: adherence to direct liability with creative procedural identification tools, indirect liability of a third party with some control over the unidentified wrongdoer’s conduct, residual indirect liability, and no causation-based liability.
Part II 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 a 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.
Part II then 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.
Perry, Ronen, The Unidentified Wrongdoer (March 3, 2021). Georgia Law Review, forthcoming.