The political process has advantages: expertise, etc. So the question is "would there be sufficient regulation?" It looks like no, because the potential victims (who want regulation) are unlikely to act, whereas potential injurers (who don't want regulation) are motivated to lobby.
At the same time, if we want to use the tort system to send safety-incenting messages, punitive damages are the standard medium, and there are lots of problems with those. So some people have proposed "tort fines," but the minute that gets proposed, we need to ask "who sets those fines and how?" Well, presumably it's an expert administrative agency-- and, as a result, they'll hear from potential injurers much more than potential victims.
So, back at Boomer, we might say that we can see the market will be a poor decider of the issue, which means the standard trespass = injunction rule is in danger, but we don't know in advance what alternative will be selected.
There's nothing intrinsic in those categories-- at boundary cases, we need to expect that the decision-maker will change.
No goal means anything for law or public policy, etc., until we've made the choice of institutions to implement it. So institutional choice will be contested, and no choice is perfect (e.g., how will insurance or prevention actually be delivered).
Our focus is not on the goals, but on the impact they have on institutional choice. "Resource Allocation Efficiency" is associated with the markets; "Distributional fairness" is associated with the political process; "Justice" is associated with the courts. None of those is an attainable ideal-- maybe they can't even be properly defined. But all of them involve understanding the impacts of a choice on a range of people, and all of them imply an approach to doing cost-benefit analysis. We're concerned with finding the factors that make the choice of decision-maker.
Whenever you talk about a goal, you need to think about the relative merits of the options for pursuing that goal, basically.
Note that the signal also fails in the product liability context when we think about contributory negligence: potential victims who might be able to take safety steps will not get any message from the tort system.
Defense: hey look, this is not a "low numbers" issue... the classification of "mentally retarded" turns up in a lot of laws, and suits involving all of them might suddely land on the federal courts if you give strict scrutiny (i.e., declare yourselves to be the decision-maker). Also, complexity is high-- there are other groups similarly situated, and so on. So yes there may be majoritarian bias at the local level, but the state legislature can offer a remedy.
I've got two questions; reading over the first one now, it seems kind of incoherent. I apologize for that. I'm really curious about two things: the role of the market in Constitutional institutional choice, and the interplay between the Constitution's institutional design and the choice of decision- maker. I'm just having trouble coming up with a concrete issue to cast things in the form of a question. Hopefully the second question is of superior quality. 1. Our discussion of Constitutional law has focused more or less entirely on the choice between the courts and the political process, and has left the market out of the picture. One interesting aspect of the Constitution is that it purports to limit some of the areas in which the legislature can act. Are there areas off limits to the legislature in which courts have ruled so starkly that issues arising in them are generally decided by the market? If courts ever intervene in these areas, what persuades them to do so? 2. Again with the Constitution. To a great extent, the legislature controls the jurisdiction of the federal courts (see, e.g., laws like AEDPA). In this sense, they're deciding who decides-- in order to hear a case where a court's jurisdiction is limited, in other words, they first have to find the jurisdiction-limiting statute unconstitutional, and that's an uphill battle (see, e.g., Dickerson v. United States, 530 US 428 (2000)). To what extent do you see legislative control over access to the courts as a tool for protecting scarce judicial resources as opposed to a tool for circumventing review of suspect policy areas? |
But the reality is that mostly they get used for the second purpose, not the first. There are virtually no air pollution classes certified, e.g. Class actions just seem not to be a terribly effective avenue for truly dispersed interests: those tend to get relegated to the political process, for better or worse.
That result is not perverse if you think of the goal of tort liability as providing after-the-fact insurance. Nobody is going to insure for a loss they'll never experience.
But if we're in a context in which safety is a main concern (i.e., that a signal is likely to be received), we might think non-pecuniary damages are an attractive option. So there's a tension between the goals of safety and insurance: the question "what safety would you buy?" (i.e., reducing the chances of severe injury before the fact) is different from "what insurance would you buy?" (i.e., what do we want to replace with money once the injury has occurred).