Economists argue that tort law promotes an efficient allocation of resources to safety, while philosophers contend that it dispenses corrective justice. Despite the divide, the leading tort theories share something in common: They are grounded in an unduly narrow view of tort. Both economists and philosophers confuse the institution of tort law with the rules that are distinctive of it. They offer theories of tort’s substantive rules, but for the most part ignore the procedures by which those rules are implemented. As a consequence, both miss and misconstrue much about tort law.
The problem is particularly acute for economists. They analyze the impact of tort’s substantive rules on accident and accident avoidance costs. Yet, the institution of tort law generates many other costs and benefits for society, and those costs and benefits affect the optimal arrangement of tort’s rules. The fact that economists have not factored these additional costs and benefits into their analyses calls into question their descriptive and normative claims about tort.
Corrective justice theory is not in as much trouble as the economic approach, but it is troubled still. Philosophers’ neglect of the procedural dimension of tort has caused them to overlook ways that tort does justice between wrongdoers and victims. And it has led them to make misleading claims about the nature of both corrective justice and tort law.
This article draws out the trouble with tort theory through a thought experiment, starring Harry Potter. Potter’s magic helps to highlight the features of tort that the leading theories overlook. Once they are in view, the article considers the ways in which the omissions cast doubt on the claims those theories make, investigates ways they might improved, and offers several observations about the choice between them.
From today's New York Times, Eric Weiner's opinion piece on the Nones, those who aren't atheists, but aren't quite religious. They're undecided.They're still seeking. They're Seekers (my term, not his). Mr. Weiner offers his explanation of why, and what the Nones are looking for. He suggests it's rationalism, humor, a view of the world and their place in it that shows them how to find answers that reconcile the big questions with the little ones. And, he says, they don't like all the anger in the public square that we get now over the Free Exercise Clause and the Establishment Clause. After 275 years, is the age of the Enlighenment having a Renaissance?
Adam Samaha, University of Chicago Law School, has published Regulation for the Sake of Appearance as University of Chicago Law & Economics Olin Working Paper No. 576 and University of Chicago Public Law Working Paper No. 364. Here is the abstract.
Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. These normative questions include aesthetics, transparency concerns, and the likelihood of a self-fulfilling prophecy. A final section applies these ideas to prominent debates over campaign finance regulation and broken windows policing. Leading empirical studies are examined and, throughout, the Article draws from scholarship in philosophy, sociology, psychology, economics, and political science.
Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. Lawyers, however, are given license to be insincere. They are trained to be simultaneously truthful and insincere. On the one hand, they are required to tell the truth in the context of legal proceedings. On the other, they are insincere in that they routinely structure their speech to lead others into drawing inferences that will serve the lawyer’s goals, whether or not those inferences reflect a fair assessment of facts or law. This paper looks at the distinction between lying and deception, and finds some moral distinction, but not enough to justify the conduct acceptable by the legal profession on moral grounds. The paper discusses aspects of our psychology that make us vulnerable to the kind of deception practiced by lawyers, and concludes by criticizing American legal education for not imbuing a sense of responsibility in young lawyers that should accompany the license to be insincere. While the article focuses on lawyers working in the American adversarial system, many of the observations and issues apply to lawyers working in other legal systems, as well.
Professor Solan says in part:
Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. The assumption of sincerity is generally suspended when we know that a person is speaking on behalf of someone else and taking an assigned position, making lawyers‘ insincere speech a special case of a more general phenomenon. Just as debaters and actors can and should put their own beliefs aside, lawyerly conduct can, in broad terms, be justified by the attorney‘s obligations in the adversarial system, which is often discussed under the rubric of role morality. After all, how can a lawyer represent a party in litigation without advocating for that party‘s position, whatever the lawyer believes?
Not all forms of insincerity are acceptable, however. Lawyers are trained to be simultaneously truthful and insincere. While they may structure their speech to lead others into drawing inferences that will serve the lawyer‘s goals, whether or not those inferences reflect a fair assessment of facts or law, they must not lie. It is acceptable to use cross-examination to direct a jury toward a theory that the evidence supports but which the lawyer does not believe to be true. It is not acceptable, however, for the lawyer to misstate the evidence in a closing argument.
This distinction – between lying and deception by misdirection – is accepted as a skill at which lawyers should become facile. Yet it rests on a shaky moral foundation. People typically have strong intuitions that lying is bad per se, and that that it is better to frame something deceptively than to lie about it. But many moral philosophers do not give much credit to this intuition. A person who is the victim of a deceptive practice generally feels no less violated just because the deception was not accomplished through a bald-faced lie. This essay explores this distinction, on which so much of lawyerly practice is based.
Moreover, the best lawyers are so convincing that they are able to cause their audience to let down their guard and to forget that they are dealing with an advocate. The essay also explores some of the psychology that leads to this sometimes unwise placement of trust. Thus, lawyers can be truthful, insincere, and effective all at the same time. In fact, they must be both truthful and insincere to be effective advocates, because zealous advocacy requires some degree of insincerity, and lawyers are not permitted to lie. This, in turn, explains why it is easy to distrust lawyers while, at the same time, admiring them. As Robert Post observed, lawyers ―are simultaneously praised and blamed for the very same actions.
Hmmm. Sort of like magicians (but less fun, and more expensive)? Download the essay from SSRN at the link, and pay no attention to the person behind the curtain.
This essay attempts to delineate, trace, and reconstruct the main features of three interacting language paradigms significant in legal discourse, practice and theory: rhetoric, representationalism, and performativity. The examples discussed are narratives of institutionalized and customary law that share linguistic attributes with literary forms and theological puzzles. Law, as a complex linguistic activity, is thus placed in a long tradition of linguistic theory ranging from Plato and Protagoras to Wittgenstein, Austin and the linguistic turn (Sapir-Whorf); as well as supernatural uses of law, exercised both by divine fiat and lesser practices - namely the linguistic aspects of magic - especially in determining rights and settling disputes.
Download the full text from SSRN at the link, or from the journal here.
For Harry Potter fans, a new book (at least new to me) called The Psychology of Harry Potter: An Unauthorized Examination of the Boy Who Lived, edited by Neil Mulholland, and published by Benbella Books. I admit that I don't quite understand the subtitle ("An Unauthorized Examination of the Boy Who Lived". Lived where? Lived what? How? but anyway. Among the essays included are Jessica Murakami's "Mental Illness in the World of Wizardry," and Patricia Rippetoe's "Defense Against the Real Dark Arts."
A couple of other Harry Potter psychology and philosophy titles, if you like this subject:
David Baggett, Harry Potter and Philosophy: If Aristotle Ran Hogwarts (Open Court, 2004).
William Irwin, The Ultimate Harry Potter and Philosophy: Hogwarts for Muggles (Wiley, 2010).
So, some lawyers are seeking a zen state. It happened at the Mindful Lawyer Conference in Berkeley, held at the UC, Berkeley campus (now, don't go saying "of course"), and I've seen a plethora of writing (well, a lot of posts anyway) about the event. Check here at Contemplative Law, here at idealawg, and here at Greedy Associates (topic: billable hours--well, would you expect anything less?)
This paper delves into the age-old debate over free will and determinism as raised in the work that held popular culture transfixed for the better part of a decade: the HarryPotter novels. Though the final book was published in 2007, thus revealing the outcome of the series’ cliffhanger, this paper (written in 2006) argues that the books embody a Catholic moral theology and sensibility. The central figure through which those ideas are most fully expressed is not the title character, whose moral sense remains less than completely developed throughout the first six novels, but through another major figure in the series. That character’s mysterious past is whimsically explored here and tied to author J.K. Rowling’s larger purpose: to make the book a vivid object lesson in the power of love, forgiveness, and redemption – all essential elements of the Augustinian notion of free will.
Given the increasing shrillness of debates about religion in the public square and in the schools, and over what children should be taught about evolution in the public schools, last night's Nightline debate among several leading thinkers (including Deepak Chopra and Michael Shermer) on religion, philosophy, and science was of interest. Here's a link to the debate if you'd like to hear it again or if you'd like to hear it for the first time.