For more than a century, legal scholarship on the duty to rescue has proceeded on a sophisticated theoretical plane. Proponents of a duty to rescue have argued that it will decrease the frequency of non-rescue without creating undue distortions or other difficulties. Opponents of a duty to rescue have argued that such statutes are ineffective, infringe on individual liberties, may actually discourage rescue, and are likely to be misused by politically ambitious prosecutors. No effort has been made to test any of these claims empirically, even though from a policy perspective, the critical threshold question -- how often do Americans fail to rescue one another in circumstances where only a generalized duty to rescue would require them to do so -- is entirely factual. This article provides the first empirical study of the no-duty rule in action. Using more than twenty independent data sources, the article provides a “law and reality” perspective on rescue and non-rescue that complicates -- and sometimes is flatly inconsistent with the positions of both proponents and opponents of a duty to rescue. The results paint a rich and largely reassuring picture of the behavior of ordinary Americans faced with circumstances requiring rescue, and indicate that both more and less is at stake in the debate over the no-duty rule than has been commonly appreciated. Law professors and judges have been fascinated with the no-duty rule for theoretical reasons, but the ongoing debate should not obscure the reality that in the real world, rescue is the rule – even if it is not the law.


Law and Economics

Date of this Version

November 2005