Law in Contemporary Society
-- KahlilWilliams - 27 Jan 2009 In the Path of the Law, Justice Holmes distills the calculation of damages in tort law down to a calculation of “how far it is desirable that the public should insure the safety of one whose work it uses.” His analysis forecasts the work of scholars like Guido Calabresi, a 2nd Circuit Judge and Yale Law Professor, whose theory of the “cheapest cost avoider” takes much the same tack. Calabresi’s theory assigns liability by weighing the relative cost of each person exercising an additional unit of caution: the actor who can do so more cheaply (in a BPL context, the one with the smaller “B”) is assigned liability.

Despite the increased influence of Calabresi, Richard Posner, and others, the law has yet to actually embrace this economic mode of thinking widely, for the same reasons, I suspect, that “legal science” fell flat a century ago. Put bluntly, the “legal-logic” machines that Frank describes are no better equipped today to determine the outcomes of cases or the calculus of judges any better. Instead, economic models of the law, like the scientific expressions of the law, either describe situations that are so divorced from reality as to provide little insight, or so obvious they warrant no further discussion.

The BPL analysis is but one example. For all its elegance, the formula offers very little in terms of explanatory power: it only places what we already know and do (and what judges had known and done for centuries) into mathematical terms that mimic scientific expression. Judges are still forced to make value judgments on probability and burden in ways that are highly subjective. Liability may be determined ex post, but this is no help to the actor, whose assessment of his own actions that no less vague than his calculations of either the P or the L. In order to salvage these formulas, economists use “rational actors” who, with perfect information, are able to accurately assess liability, probability, and burden, and any other real “work” that must be done; the fact that such actors don’t exist provides no resistance to the proliferation of economic theories of social behavior and decision-making.

In reading criticisms of legal scientists, I can’t help but think that there’s a funny circularity to the study of law. For scholars to take hard-line scientific approaches to the law 100 years seems pretty funny, given what we know about the relative fruitlessness of their efforts (Wile E. Coyote comes to mind). But it’s a bit discomforting to see legal study evolve in this way today, with full awareness of the legal science movement’s earlier failures. Are lawyers incapable of accepting the complexity of society and social interaction without axiomatic principles? Further, are there actually principles left to find, or are legal scholars just coming up with new law talk to describe the principles lawyers and jurists have employed for centuries?

Kahlil Williams - 1.27.2009

You seem to have nicely anticipated Frank here. I think he'd agree that the BPL formula is an illusory facade of logic over a messy fact-finding process. In fact, it's the perfect example of empty legal logic: the terms mean nothing until filled in by case-dependent facts. And the formula itself gives no guidance for how to conduct the fact-finding process. Everything that is essential is hidden, while the insubstantial is paraded around as a ground-breaking rationalization of law.

But lawyers also know how much the BPL formula hides and continue to find it helpful on some level. Is it because they don't know any better, and are truly deluded into thinking that the formula encapsulates useful operational logic? Probably not. Rather, we can use the formula to frame the types of questions to ask and factual investigations to conduct. In this way, the formula is a starting point for a deeper inquiry and not just a way to plaster over important factual questions in a judicial opinion.

Gavin Snyder - 1.29.2009

  • I think this comment makes good points, Gavin, which are easier to read if not typeset so as to induce seasickness. Not the first time Javascript ever made me want to barf, I admit, but still.....


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r6 - 30 Jan 2009 - 04:30:07 - EbenMoglen
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