Monday, November 21, 2005

When Law Professors Run Out of Good Ideas

Or, "A Simple Proposal to Eliminate Dumb Law Review Articles": Tenure, or other academic awards, should be given based upon a randomly selected article multiplied by 2/3 of the number of articles written. Professors would then be deterred from writing stupid crap like this: A Simple Proposal to Halve Litigation Costs - David Rosenberg & Steven Shavell

The dumb idea:
Under the proposal (1) only half the cases brought before a court would be randomly chosen for litigation, and (2) damages would be doubled in cases accepted for litigation.

Let us list some of the problems:
1. Its probably unconstitutional. If "Due Process of Law" includes the right to engage in sodomy, you probably have the right to take your legal claim of wrongful death to trial.
2. Jury Nullification. Because juries would know damages would be doubled, they are likely to reduce the award.
3. Differences in risk aversion. The paper takes as a given that Plaintiffs and Defendants are equally risk adverse overall, and in every particular case. There is no reason to believe this is true. Imagine a large insurance company that deals with many cases vs. a plaintiff with only one personal injury, say, paralysis. That injured person will want a recovery to pay for their medical bills, lost wages, and so forth. They will be very adverse to receiving nothing. The (big) insurance company will be indifferent between $0 and a double award. They can use this leverage to negotiate a lower settlement value. As part of this strategy, they should let a number of cases go through random elimination to encourage other plaintiffs to settle (proving they are willing to accept double damages). Plaintiff's lawyers may have a lot of money, but they are not allowed to shift money from one successful plaintiff to another.
4. More defendants will become judgment proof. If the expected damages are above half of the net worth of the defendant, they will have an incentive to risk the 50/50 chance they will avoid any damages at all. This will harm plaintiffs by either reducing the settlement amount or giving them no recovery.
5. Some clearly wronged plaintiffs will receive nothing. Besides this outcome being undesirable, the proposal would be repealed by angry human beings who look to the justice system for justice, not economic dollar-based efficiency. If the proposal was not repealed, I would expect to see more vigilante justice and domestic terrorism.
6. Need I go on?

I have had a number of dumb ideas (lets call them "thought experiments"), but I don't publish them. It seems the Virgina Law Review read the authors resumes rather than the Proposal.

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