Rory Van Loo (Boston University – School of Law; Yale University – Yale Information Society Project) has posted The Revival of Respondeat Superior and Expansion of Gatekeeper Liability (Georgetown Law Journal, Vol. 109, No. 141, 2020) on SSRN. Here is the abstract:
In an era of servants and masters, respondent superior emerged to hold the powerful accountable for the acts of those they control. That doctrine’s significance has only grown in an economy driven by large corporations that rely heavily on legions of subsidiaries and independent contractors, such as banks deploying independent call centers, oil companies using drilling contractors, and tech platforms connecting consumers to app developers. It is widely believed that firms can avoid third- party liability for many laws by outsourcing or creating subsidiaries.
This Article shows that common narratives of the demise of third-party liability are incomplete. Respondent superior is alive and well. Moreover, in environmental, employment, consumer protection, discrimination, and other areas, the law requires large companies to act as gatekeepers by regulating third parties.
The task ahead is to understand and reinforce liability’s ongoing adaptation to a financially and digitally intermediated world. Updating courts’ analytic tools to include economics and network theory would more accurately measure power compared to the current, intuitive approach. Moreover, courts should view pervasive technologies of control — most importantly surveillance tools and online platforms — as stronger evidence of liability. The revival has the potential to restructure corporations, markets, and society in a beneficial manner by bringing harmful activities, as a matter of law, back within the fold of the firm.
Highly recommended.