Abstract
Professionals must at times make snap judgments that have profound consequences. Does a doctor perform an otherwise forbidden abortion to preserve a patient’s failing health? Does a police officer fire at a suspect pointing an unidentified metal object? The criminal law tells these professionals: Don’t intervene unless the danger is serious and the risk is imminent. But it offers little to guide that determination beyond: Be reasonable. Yet the “right” choice—the one that’s legally safe—often resembles the “wrong” one: a felony punishable by decades in prison. These ambiguous regimes operate as liability cliffs that professionals are forced to traverse at a rapid pace. Professional cliff running is time sensitive and high stakes. It’s also been overlooked by courts and commentators alike. We introduce this neglected phenomenon, trace its surprising operation in socially salient contexts, and examine its far-reaching significance for the law and for democracy.
Professional liability cliffs arise at the fault line of two enduring values that often conflict: deference to expertise and accountability for misconduct. Maintaining equilibrium between these values is vital. Too much deference emboldens professionals to act hastily and violate the law. Too much accountability chills them from meeting the moment under fast-changing circumstances. The reasonableness doctrines that govern cliff running for police officers and abortion providers look almost identical on the books. Yet on the ground, the law strikes starkly different balances between deference and accountability. The divergence has to do with trust between professionals and prosecutors. The confidence that officers and prosecutors tend to have in each other makes cliff running relatively safe for police but treacherous for the victims of their on-duty violence, disproportionately Black and Latino men. Meanwhile, mutual suspicion between doctors and prosecutors predictably chills emergency abortion care, imperiling patients who rely on it, especially low-income women of color who lack insurance and other resources to travel for treatment. These dynamics motivate promising and practical doctrinal and institutional reforms.
Repository Citation
William Ortman and Dov Fox,
Cliff Running
, 103 Wash. U. L. Rev. 155
(2025),
Available at: https://digitalcommons.law.uga.edu/fac_artchop/1757
Previously posted to SSRN.