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12 J. Tort L. 255 (2019)
Aiding and Abetting Matters

handle is hein.journals/jtorl12 and id is 260 raw text is: Sarah L. Swan* Aiding and Abetting Matters https://doi.org/10.1515/jtl-2019-0030 Abstract: Aiding and abetting is a popular and well-known basis of criminal liability. Yet its civil counterpart, civil aiding and abetting, exists in relative obscurity. Like criminal aiding and abetting, civil aiding and abetting is of ancient origin, but it has only achieved contemporary popularity in particular niche areas like business torts and human rights statutes. In some states, it currently exists in a strange legal limbo, with perhaps some specific forms of civil aiding and abetting recognized (like aiding and abetting fraud), but with its status as a general fount of tort liability uncertain. This Article argues that the disregard for civil aiding and abetting is an error, as civil aiding and abetting can play an important role in remedying contemporary harms. Specifically, civil aiding and abetting can bridge gaps left by duty rules in negligence. This gap-filling function will be further enhanced if courts continue the nascent trend of accepting that in certain circumstances, a failure to act can be a form of substantial assistance. As our cultural understandings of complicity broaden, aiding and abetting can serve as an important tool for allocating responsibility and achieving just compensation. Although it is often mistakenly eclipsed by other forms of joint liability, civil aiding and abetting has significant independent value. Keywords: aiding and abetting, tort law, criminal liability, civil aiding and abetting, understanding of complicity I Introduction Aiding and abetting is a well-known and well-used source of criminal liability. Civil aiding and abetting, on the other hand, is neither of those things. Only a few tort casebooks even mention its existence, and outside the bounded areas of business torts and human rights statutes, civil aiding and abetting occupies a rather hazy netherworld of liability.' This Article argues for the invigoration of 1 See, e. g. JOHN C.P. GOLBERG ET AL., TORT LAW: RESPONSIBILITIES AND REDRESS 292, 646-7 (4th ed. 2016) mentioning aiding and abetting in two notes. WARD FARNWORTH & MARK. *Corresponding author: Sarah L. Swan, College of Law, Florida State University College of Law, Tallahassee, FL 32306-1058, USA, E-mail: sswan@law.fsu.edu DE GRUYTER J. Tort Law 2019; 12(2): 255-282

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