Research UCALL

Technological advancements may offer a wide array of opportunities to solve societal problems, but also raises questions of accountability and liability. Such as, in the criminal law context: could artificial intelligence be employed in risk assessment procedures of convicted felons? If deep brain stimulation can help reducing aggressive tendencies in people, could persons then be forced to undergo such a treatment by court order? And if so, would that be different if the treatment requires invasive surgery? In civil law, questions about the allocation of accountability and liability for, for instance, autonomous intelligence systems arise. Who would be liable when a self-driving car crashes and causes damages? Do autonomous intelligence systems necessitate the development of new liability regimes? How do we allocate responsibility for inherent uncertainties about the risks that come along with new technologies? What is the role of the precautionary principle in this respect?

On a regular basis, society is confronted with harmful acts causing widespread or collective harm. Think of occupational diseases affecting large groups of workers, such as asbestosis or silicosis, damage resulting from mining and gas drilling activities, for instance in Groningen, climate change damages, damages associated with the Dutch childcare allowance scandal, the still uncertain consequences of long COVID, and personal injuries in general. How can (liability for) such harms be allocated in a just and manageable way, and how can victims get satisfactory compensation? What role does (civil) liability law play in this respect? Does it offer appropriate avenues for dealing with collective damages? And does it take proper account of the victims’ needs for recognition and recovery?

Activities of multinationals span the globe, but the risk and harm coming along with their activities are often externalized to areas with low levels of regulation and governance. I.e., corporations cause harm to people, such as their workers and local communities, and to the environment outside their ‘home’ state. To what extent and how can these corporations, which are often construed as complicated networks, be held accountable for these harms? Where can they be sued, if this is impossible in the place where the harm occurred? And to what extent do corporations have responsibilities towards people and the environment at all?

Increasingly courts over the world are confronted with the question whether states and corporations can be legally held accountable and liable for their contribution to climate change. The Dutch Urgenda case and the case against Shell are telling in this respect. These cases have inspired similar lawsuits worldwide, both in national courts and international (human rights) bodies, using liability law to address the causes and consequences of climate change. But, how does the law distribute responsibility and accountability for contributing to dangerous climate change? What are the underlying normative principles in this respect, and how should new legal issues be assessed according to these principles? Is it up to courts to make such determinations, or rather to parliaments and/or governments? Can courts, staffed by lawyers rather than climate scientists, make (factual) determinations as to the causal links between emissions, climate change and for example dangerous weather events? And can we empirically test the impact of this litigation on actual mitigation and adaptation policies?

UCALL’s Empire is our collaborative research project, where we centralize the empirical and interdisciplinary study of accountability and liability law. The goal is to conduct empirical-legal research and develop appropriate methodologies, through case studies that transcend the respective fields of accountability and liability law.

This project has thus far resulted in two published volumes. In Assumpties Annoteren (Boom, 2019) we identify factual assumptions that courts implicitly or explicitly make, and examine their validity. Think of the assumption that the threat of product liability leads to defensive innovation. We evaluated the evidence that was available on the specific assumption and analyzed whether such assumptions are supported by empirical evidence.

The follow-up publication Opvattingen Onderzoeken (Boom, 2022) examined the use of societal views by courts. Courts have used such views to determine the societal acceptance of sexual acts between minors, whether companies can be excused from contractual non-compliance due to foreign sanctions, and whether hospitals can be liable for using faulty medical devices. We tested several of these views across different legal fields by conducting qualitative research and issuing questionnaires, and analyzed whether what courts think is acceptable in society indeed matches the views of the respondents.