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109 Geo. L.J. 141 (2020-2021)
The Revival of Respondeat Superior and Evolution of Gatekeeper Liability

handle is hein.journals/glj109 and id is 145 raw text is: The Revival of Respondeat Superior and Evolution of Gatekeeper Liability RORY VAN Loo* In an era of servants and masters, respondeat 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 con- sumers to app developers. It is widely believed thatfirms 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. Respondeat 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. These gatekeepers incur liability when they fail to enforce the law. In light of these features, the expansion of liability would be aptly described as respondeat gatekeeper. The task ahead is to understand and reinforce liability's ongoing adap- tation 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. TABLE OF CONTENTS INTRODUCTION ..................................................... 143 1. THE DECLINE OF RESPONDEAT SUPERIOR ......................... 148 A. THE COMMON LAW RISE AND FALL........................... 148 * Associate Professor of Law, Boston University; Affiliated Fellow, Yale Law School Information Society Project. 0 2020, Rory Van Loo. I am grateful to Jennifer Arlen, Ryan Bubb, Julie Cohen, Rebecca Crootof, Anne Fleming, George Geis, Michael Guttentag, Mike Harper, Ted Janger, Saul Levmore, Mike Meurer, Frank Partnoy, Danny Sokol, Eric Talley, Andrew Tuch, David Walker, Kathy Zeiler, and participants at the Loyola Law School (LA) faculty workshop for valuable feedback. Brianne Allan, Samuel Burgess, Leah Dowd, Derek Farquhar, Shecharya Flatte, Ian Horton, Ryan Kramer, Jack Langa, Ellen Miller, Kathleen Pierre, and Brittany Swift provided outstanding research assistance. The Article was first submitted for publication in August 2019. 141

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