Legal Policy Arguments (Post 2 of 2) — Morality, Efficiency, and Questions to Ask Yourself

(As I mentioned in post 1, I’m posting again some thoughts that I had about making effective policy arguments, in law school, in legal articles, and in briefs.)

3. The best policy arguments generally combine moral and practical arguments…. [P]eople often debate whether the law should be aimed at efficiency or at justice. But whatever you think is the right answer, your audience (for instance, a multi-member court) will often have mixed views. Some might think the law should be aimed chiefly at one, some at the other, and most will likely care about both. So try to reach both, by arguing that your proposal is better along both dimensions.

Also keep in mind that economic arguments are not the opposite of moral arguments. Economic arguments can often be relevant to figuring out how a moral argument applies: For instance, if our moral argument is that “everyone should be free to exclude others from their property, so long as such exclusion doesn’t cause unreasonable harm to others,” the question of what harm is “reasonable” may well be informed by economic analysis.

Moreover, economic efficiency itself has a moral dimension: As society gets richer, people on average tend to get more of the things (education, health care, and such) that we may think they morally deserve. And this is true for more specific economic effects as well: If, for instance, imposing liability on cities for accidents in public swimming pools leads to closing such pools, then poor children will have less opportunity to enjoy the activities enjoyed by middle-class and rich children (who have access to private swimming pools). That may itself have moral relevance — though one can of course also argue that it’s morally good for poor children to be protected from dangerous pools by the deterrent effects of liability.

Likewise (though this example isn’t directly relevant here), an economic analysis of whether some policy will cause aggregate social harm or benefit will often be premised on moral judgments about whose interest count: Should you aggregate the harm or benefit to all Americans? To all humans alive today? To all humans alive today and in the future? To all primates?

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Now a few words about the specific kinds of policy arguments that are often made in a wide range of cases, though especially tort cases. (I initially wrote this for students in my Torts class.) People often talk about various fields of law as being aimed at compensating those who are injured (physically, emotionally, or psychologically), and deterring future injuries. And that’s true as far as it goes. But let’s get a bit more detailed, and point to some (often interrelated) questions that you might ask yourself with regard to any proposed liability rule:

A. Questions Focused Immediately on What Has Happened:

1. Does the plaintiff deserve to be compensated? Sometimes the answer seems obviously “yes,” for instance if the plaintiff was hit and injured by a drunk driver. Sometimes it’s less clearly “yes,” for instance if the plaintiff had his past drunk driving conviction revealed to the public, and is now suing for the disclosure of private facts.

2. Does the defendant deserve to pay compensation to the plaintiff? Again, sometimes the answer seems obviously “yes,” for instance if the defendant is the drunk driver who hit the plaintiff. But sometimes it’s less clearly “yes,” or perhaps even clearly “no,” even when the defendant was one of the but-for causes of the plaintiff’s injury (i.e., but for the defendant’s actions, plaintiff would not have been injured) — for instance, if the plaintiff is suing the company that manufactured the drunk driver’s car, simply because it manufactured the car.

Note, though, that “deserve” here need not mean that the defendant is culpable, only that we think he has incurred an obligation as a result of his action. For instance, one might conclude that a mining company should be strictly liable for all damage that its blasting does to neighboring properties — because it bears the profit from the mining and should thus also bear the loss — even though the mining company isn’t morally culpable for blasting.

B. Questions Focused on What Will Happen in Litigation:

3. Are there particular reasons to think this proposed rule will cause problems in actual litigation, such as undue litigation expense, undue intrusion on privacy, or undue risk of error on the part of the judge or jury? Some such expense, intrusion, and risk is inevitable; but sometimes the cost or risk might be so high — especially compared to the alternatives — that it’s worth shifting to a different rule.

For instance, some argue that no-fault insurance is better than negligence liability at dealing with auto accidents, both because it’s cheaper and because many auto accident lawsuits devolve into swearing matches in which it’s hard to tell who’s telling the truth. Likewise, one argument against “alienation of affections” lawsuits (in which a cheated-on spouse sues the person with whom the other spouse was unfaithful) could be that it’s unusually hard or intrusive to get at the truth of such allegations.

C. Questions Focused on How the Risk of Liability May Change Future Behavior:

4. How would this rule affect behavior by this defendant and similar defendants — for better and for worse? If a business is told that it will be held liable for injuring people, it’s likely to take precautions that diminish the risk of such injury. These precautions may well be good for society generally.

But some of these precautions may cause social harm. To return to a classic example given above: If you hold newspapers strictly liable for false and reputation-injuring statements that they publish about people, they might be deterred not just from publishing false (and thus socially harmful) statements but also from publishing true (and thus socially valuable) statements. Your task in evaluating an argument, and in thinking about policy arguments for and against it, is to consider all of its possible effects, good and bad.

5. How would this rule affect behavior by this plaintiff and potential future plaintiffs — for better and for worse? Might imposing or increasing liability on the defendant diminish potential plaintiffs’ incentives to behave safely, or encourage plaintiffs to fake injuries or exaggerate their extent?

On the other hand, might giving defendants free rein to do something dangerous cause plaintiffs to be more cautious than we want them to be? An example from contract law: If certain kinds of defendants could easily evade their contracts without liability, other people might choose not to do business with those defendants at all, or only do it on a cash-up-front basis. Such caution would be rational from those other people’s perspective, but would be bad for society as a whole. Assuring potential plaintiffs that they can recover damages if the defendant breaches a contract thus advances social efficiency.

6. How would this rule affect behavior by people other than prospective defendants, again for better and for worse? Rules also affect not just prospective defendants, but others whose behavior will be affected by the prospective defendants’ behavior. That could often be good: For instance, imposing liability on bars for accidents by their customers may prevent misconduct by the customers. Or it could be bad: For instance, as I suggested above, if employers are deterred from hiring ex-felons, then ex-felons might end up unable to get jobs, and thus might end up more likely to turn to a life of crime.

7. Would this rule unduly interfere with defendants’, prospective defendants’, or others’ liberty or privacy? Deterrence of some behavior may be bad not because the behavior is socially useful, but because we think the behavior is an important aspect of political liberty or personal liberty. For instance, if libel law unduly deters even accurate reporting, then that might affect newspapers’ freedom of the press.

And these liberty concerns need not be limited to constitutional rights. For instance, say liability on skydiving companies were imposed on the grounds that skydiving is so dangerous and so lacking in social value that it’s inherently unreasonable to offer such services. (That’s not the legal rule, but say such a legal rule is proposed.) This might make skydiving so expensive that most people couldn’t afford it, and this would in turn affect their liberty to choose to engage in this risky behavior. Perhaps the intrusion on liberty is justified, for instance on the grounds that people shouldn’t risk their lives in such activities — but the intrusion has to be recognized, and considered in analyzing the merits of the proposed rule.

Likewise, if parents who are hosting a party for teenagers are held liable for negligence if two teenagers have sex in a bathroom (see Doe v. Jeansonne, 704 So. 2d 1240 (La. Ct. App. 1998)), parents would have to more closely patrol such parties, and check the bathrooms in case they have reason to think something might be amiss. Again, that might be a reasonable privacy cost, given the harms that teenage sex can cause, but we should consider it as a cost.

8. Are there policy choices involved in this rule that we’d feel uncomfortable having made by juries and judges? Or might we prefer that they be made by juries, rather than by legislators? Say a plaintiff who was hit by a 21-year-old drunk driver sues a store for selling alcohol to the 21-year-old. Because 21-year-olds are more dangerous drivers than 25-year-olds (though not as dangerous as 18-year-olds), the plaintiff argues, it’s unreasonable for the store to sell to 21-year-olds, even though there’s no criminal statute prohibiting such sales. The store — and all other sellers of alcohol — should (the argument would go) set a cutoff age at 25.

One might object to this proposal on various grounds (and endorse it on various grounds). But one possible objection might be that the tradeoff between liberty and safety involved in setting the drinking age should be made by the elected representatives of the people, and not by judges or juries. On the other hand, some might argue that unelected judges and (more or less) randomly selected juries are better decisionmakers than legislators, who are more likely to be captured by special interests or distracted by other matters on their legislative agenda.