Huemer’s new Justice before the Law is full of memorable passages, but this is the one that stayed with me:
There are few threats more frightening to Americans than the threat to embroil someone in legal trouble. An illustrative case occurred at a nursing home in California in 2013. An 87-year-old woman living at the facility had stopped breathing, and a nurse on staff called 911, the local emergency services. The 911 dispatcher pleaded with the nurse to start CPR, knowing that the resident would not survive without immediate assistance. The nurse refused, citing company policy. The dispatcher assured the nurse that she could not be sued if anything went wrong during the resuscitation attempt and that the local emergency services would assume all liability, yet the nurse remained unpersuaded. The resident died soon after. The dispatcher’s assurances to the nurse reflect common knowledge of American culture: Americans have come so far in our fear of our own legal system that a nurse might plausibly be deterred from trying to save someone’s life by the fear of a lawsuit.
Americans do not only fear losing a legal dispute; we fear getting involved in a legal dispute in any manner, whether one is in the right or not. As soon as one is sued, let alone prosecuted, whether rightly or wrongly, one expects to endure months or years during which the legal threat hangs over one’s head, and one is almost guaranteed to lose thousands to tens of thousands of dollars, no matter the outcome.
The key insights:
1. Virtually everyone in the United States, no matter how innocent, would be terrified to be sued or charged with a crime.
2. Virtually no one, if sued or charged, would say, “I have nothing to worry about, because we have a well-functioning system that prevents the punishment of innocent people like me.”
In fact, guilty people would plausibly be less anxious about being sued or charged, because they are usually more experienced at gaming the system.
Which raises an obvious question: Why do people tolerate – and even energetically defend – a system of justice that virtually everyone thinks would hellishly mistreat them if they were innocent?
The best response is something like: “Sure, almost any innocent person would be terrified if they were accused. However, innocent people rarely worry that they will be accused of anything, for the obvious reason that innocent people are hardly ever accused of anything.”
Yet on reflection, this is still pretty damning. It amounts to, “While we have a rotten system for assessing guilt, we’re good at avoiding unreasonable suspicion.” Especially when the main mechanism for avoiding unreasonable suspicion is simply flying below radar. If a plaintiff or a prosecutor ever realizes you’re alive and decides to make you suffer, your innocence will not save you from a world of pain.
READER COMMENTS
Alan Goldhammer
Nov 11 2021 at 10:41am
Where does the Peter Thiel funded lawsuit by Hulk Hogan against Gawker fit into this continuum? Would not a libertarian be concerned about this type of frivolity?
Philo
Nov 11 2021 at 11:43am
Individuals are not reliable judges of frivolity. Would that we had a legal system that was better at making this judgment—that aborted frivolous cases at the start.
(The moral issues around exploiting a system that is bad but socially accepted are very murky.)
Alexander Turok
Nov 11 2021 at 4:45pm
“I think this case[the lawsuit against Gawker] establishes a very limited proposition: It is an invasion of privacy to make publicly available a tape of a person having sex without that person’s consent,” said Erwin Chemerinsky, the law dean at the University of California, Irvine. “I don’t think it goes any further than that and I do not see a First Amendment basis for claiming that there is a right to do this.”
https://www.theatlantic.com/entertainment/archive/2016/03/gawker-hulk-hogan-sex-tape-verdict-pr-the-view-good-morning-america-publicity/475257/
Seems pretty simple to me. I’d observe the people whining about the case against Gawker don’t seem to have any problem with criminal laws against “revenge porn.” I get that you don’t like Hulk Hogan because he said the N-word, is generally low-class and probably doesn’t have woke views on sexuality. But there is nothing in the law that says that privacy laws cease to protect people who don’t fit your definition of an upstanding citizen.
Mark Brophy
Nov 11 2021 at 5:21pm
It’s not frivolous, it’s a good thing that Gawker is gone. Peter Thiel did everyone a favor, including himself.
TGGP
Nov 11 2021 at 10:52am
That people believe they are at risk for such lawsuits does not mean they actually are. Most people know little about the law. So if you want to make a statement about our justice system, you shouldn’t base it on popular beliefs rather than expert knowledge or data.
john hare
Nov 11 2021 at 5:57pm
I was at fault in an accident several years ago. When the other guy learned i was in a company truck, he decided he could sue for $100,000.00. Damage to his truck was minor, and there were numerous indications that his injuries were nonexistent. Also several other accidents he was suing for at the same time. At one point our insurance company offered (IIRC) $30,000.00 in settlement. He held out for more and eventually got nothing. Our insurance spent a fair amount of money on it anyway.
At one point our insurance attorney filed a motion to dismiss for fraud. I was asking why it wasn’t prosecute for fraud, but never got a serious answer.
John Hall
Nov 11 2021 at 11:15am
Great post!
AidenG
Nov 11 2021 at 11:41am
From my time in law school and subsequent (non-lawyer) work in the criminal justice world, there seem to be two main factors driving this problem. The first is the explicit trade protectionism of state Bars; the mandatory professional ethics class I took was primarily about the evils of lawyers daring to compete with each other on price or convenience. The second factor is that negligence law has been built as a ratchet: the cliffnotes version is that as soon as any major player in an industry decides to adopt some “safety” expense, others must follow suit or face legal vulnerability. This is mostly true whether or not the safety expense is cost justified, and it is legal poison to save money by making something more dangerous, no matter the actual cost/benefit.
AidenG
Nov 11 2021 at 11:46am
This second point is a shift from the jurisprudence of the early 20th century and before. The classic cases on the point of risk are usually punctillious in their regard for balancing precaution and price. They even sometimes went so far as to balance the harm of dangerous innovations against the benefits of having a system with broader latitude for technological adventure.
Phil H
Nov 11 2021 at 1:58pm
“If a plaintiff or a prosecutor ever realizes you’re alive and decides to make you suffer, your innocence will not save you from a world of pain.”
I’m not sure this sentence is quite as meaningful as Caplan thinks it is. I mean, you could replace plaintiff/prosecutor with pretty much anything and it would still be true. If a doctor sets out to make you suffer, they’ll probably succeed. If a mechanic sets out to make you suffer, they’ll probably succeed. If a random person decides to make you suffer, they’ll probably succeed!
It’s certainly ironic that the law (instrument of justice) can be used for the purpose of injustice. But I don’t think that in itself is an indictment of the system. More argument is required.
Sebastian
Nov 11 2021 at 3:00pm
How would a doctor or mechanic make you suffer just by knowing you are alive and that they want you to suffer. They must first have some sort of existing relationship with you that allows them to perform their misdeeds.
You can just sue someone and claim they did some nebulous hard to disprove sort of thing and tie them up in legal fees.
TMC
Nov 12 2021 at 9:49am
Neither doctor, mechanic nor random person can send armed men to your house and put you in jail. Add to this, freeze bank accounts, and all the other tools they have at their discretion.
Eric Hammer
Nov 19 2021 at 2:13pm
But when those doctors, mechanics or rando’s decide to make your life suffer, you might have recourse to the law for protection or at least retribution. When your enemy is using the law to make you suffer, you generally are out of luck. That’s the whole point. A good legal system is the solution to individuals being horrible to each other, but a bad legal system is the means by which individuals can be horrible to each other.
Dave Smith
Nov 11 2021 at 2:03pm
For some reason I’m reminded of the Star Trek episode where a society had a guilty until proven innocent rule because accusing the innocent was unjust.
Daniel Carroll
Nov 11 2021 at 3:40pm
While I’m sure Huemer’s book is chock full of research and analysis supporting his arguments, along with a comprehensive and fair treatment of the counterpoints, your quote here was not. The citation is emotionally compelling, but lacking in actual data. How often does this kind of thing happen? Did the nurse really have a legitimate reason to fear legal liability, or did she just hear about it on Fox News? It seems to me she might have more legal liability for not acting than for acting, since resuscitation is credibly included in a nurse’s job description. Most states have liability protections for CPR. A resident and family have reasonable expectations that the staff at a nursing home facility is trained, capable, and willing to perform CPR.
I’m not trying to defend our legal system – it is indeed quite byzantine and sometimes capricious – but this example is not really very persuasive.
Alexander Turok
Nov 11 2021 at 4:52pm
It was indeed the policy of the nursing home not to give CPR:
https://abc7amarillo.com/news/local/california-woman-87-dies-after-nurse-refuses-to-do-cpr-08-13-2015
Max More
Nov 12 2021 at 10:59am
Giving CPR to an 87-year old will almost certainly break their ribs and probably sternum.
David Godofsky
Nov 11 2021 at 6:08pm
More like hundreds of thousands of dollars. The system is supported by lawyers who make enormous sums of money whether they win or lose. And, since all judges and nearly all legislators are lawyers, there is little incentive to change the system. Defendants plead guilty (criminal) or settle (civil) because the randomness of the system is so frightening, thus further incentivizing lawyers on both sides to create controversies or at least keep the system going.
AMT
Nov 11 2021 at 7:02pm
I don’t think you have the true problem. You seem to think there is a large risk of being found guilty of a crime or liable for a civil suit when you do nothing wrong. I would disagree the risk is large for either, but the system has far more important problems. Point 1 should read, “Virtually everyone in the United States who cares about attorney fees would be terrified to be sued or charged with a crime.” Perhaps if you’re extraordinarily wealthy you don’t really care. Point 2, relatedly should focus on the cost of defending yourself. THAT’s the punishment!
On the civil law side, these problems exist because Plaintiff attorneys operate on contingency fees, so the Plaintiff doesn’t need to have any money for them to file a suit. Defendants are forced to pay their attorneys large amounts to provide a defense. Even extremely flimsy cases will almost always settle, because Plaintiff counsel essentially extort the defendant into some payment to avoid the very high costs of possibly extensive discovery or very expensive trials. They can do this because the system is quite lenient on plaintiff attorneys and will almost never sanction them for bringing extremely weak lawsuits and thus not say it was a “frivolous” suit. Also, courts very rarely award attorney fees to the victorious defendant.
Max More
Nov 12 2021 at 11:02am
The problem is worse in California where there is no motion for summary judgment. That means it’s much earlier for people without a real case to proceed, bringing great cost and emotional pain to innocent people.
Jose Pablo
Nov 11 2021 at 11:23pm
“Virtually everyone in the United States, no matter how innocent, would be terrified to be sued or charged with a crime.”
That’s particularly appalling when you also consider the very low probabilities of being charged with a crime you have committed.
1/8 chances of being arrested by car theft (and this is being arrested, not necessarily condemned)
1/7 chances for burglary and property crime
1/5 chances for arson
Your chances are worse for rape (1/3) and homicide (1/2) but, I guess, still pretty good if you are a careful high IQ criminal (which are, very likely, overrepresented in the more than 67% and 50% that get away with these two serious crimes).
So, does all this mean that we have a police+legal system that is a threat to innocent people but leave the criminals with a significant chance of getting away with their crimes?
Is this, somehow, related with the fact that these systems are run by the government?
Just wondering.
Floccina
Nov 12 2021 at 9:25am
I told my sons to be very careful around police because the system is quite random and you could get caught up in it. Example: A policeman could ignore hundreds college students smoking pot and then arrest one for some arbitrary reason.
David Lindbergh
Nov 12 2021 at 9:30am
I agreed with AMT; it’s fear of legal fees that’s the problem, not the justice system per se.
The justice system seems to work well for wealthy people who can afford the fees – it usually gets the right answer (eventually). People who can’t afford the fees (the vast majority of the population) can only use the system if a 3rd party pays (contingency, public defender, or insurance). If they’re a defendant, they automatically lose (via fees) regardless of the merits of the case.
Nobody fixes it because the people would could are all wealthy people.
This is why politicians should either be paid nothing at all (as in the NH legislature – only wealthy or retired people serve, from motives of prestige and benevolence) or paid very, very generously (as in Singapore – enough pay to encourage the most competent people in society to leave the private sector, and enough to make corruption an unattractive risk).
Moderate pay for politicians is a recipe for incompetence and corruption.
Robert Schadler
Nov 12 2021 at 11:09am
A broad point and a more narrow, political one:
It is rare to find someone advocating free markets who does not, almost automatically, cite the need for “rule of law”. Ignored are the substance in any rule of law and its implementation. We no longer have arbitrary monarchs, so we should update our thinking. We have arbitrary interpreters of the law (including Supreme Court Justices and many at the Dept. of Justice) and arbitrary enforcement of laws. These should be highly concerning to lovers of freedom.
We are witnessing many examples of this before our vary eyes. The Hillary Clinton server investigation unearthed a dozen or more accomplices in setting up, using and covering up her server. They were all given immunity and no one was prosecuted. In contrast, being a close associate of Trump is almost a green light for prosecution. One need not be a supporter or aghast at Trump to recognize the erosion of “rule of law” in its pristine or imagined form. The Durham findings are also relevant to the above.
nobody.really
Nov 12 2021 at 2:02pm
1: I echo the sentients of various other commenters: What a baffling post.
Maybe because … Americans prefer having an imperfect system to having NO system?
Caplan regularly lectures us about the shortcomings of government officials: We shouldn’t expect perfection; we should expect imperfection, with meagre opportunities for redress and diffuse powers for reform. Free markets have the advantage of providing feedback mechanisms prompted by free entry and free exit, yadda yadda. But can Caplan apply such lessons to a judicial system in a manner that would solve the problems he identifies? He doesn’t say.
Perhaps Caplan is merely expressing a libertarian aversion to all things government. This is an aversion arguably supported by the “Defund the Police” proponents–and rejected by voters and poll respondents of every demographic. Maybe the majority is deluded about the shortcomings of the legal system; or maybe Caplan is deluded about the shortcomings of a LACK of a legal system.
What specifically is Caplan’s beef with our judicial system? As many observe, many crimes go unsolved and unpunished. Yet the system also burdens the innocent. In short, there is both Type 1 and Type 2 error. And typically we should expect such errors to be trade-offs: You can cut back on Type 1 error by biasing toward Type 2 error, and vice versa–but you can’t eliminate error. (For example, a “presumption of innocence” is a bias away from convicting the innocent, but comes at the expense of a bias in favor of exonerating the guilty.) If Caplan is suggesting a method to simultaneously eliminate both Type 1 and Type 2 error, I’m all ears. But I’m skeptical.
To better assess the basis for Caplan’s opinion, I’d be interested to know Caplan’s own experience with the legal system. Has Caplan been victimized by crime, or had to seek relief in court? If he’s drawing conclusions based on anecdotes, I suspect his personal anecdotes would weight most heavily on his judgments (including the null hypothesis that he has never required judicial assistance)–so it would be useful for readers to know about them.
2: Of course, many people have offered concrete proposals for changing the judicial system–and some of those proposals might even address issues Caplan raises.
A–In civil litigation, make the loser pay the winner’s legal costs. This policy has downsides, but would at least theoretically provide an opportunity to more fully compensate an innocent party.
B–Eliminate (or simplify) government licensure of lawyers, thereby expending the supply and bringing down the cost. If lawyers were cheaper, arguably innocent people would have less cause to fear being pulled into legal proceedings.
C–More specialized tribunals. We might fear ignorant jurors and judges rendering decisions on the basis of ignorance and cognitive biases. Specialized tribunals might reduce this risk by letting judges gain expertise and, through repetition, learn to manage their biases. (In her first case, a novice family court judge may find a sobbing child on the witness stand quite moving, and therefore credible. By the time she sees her 100th sobbing child, this emotional reaction may be extinguished.) However, specialized courts/agencies are likely to seem less “democratic” because they will adopt speech and perspectives that differ from the general public’s. And specialized courts/agencies are arguably prone to being “captured” by the private parties who regularly appear before them.
D–Require government to provide compensation for wrongful imprisonment/execution by government. This should not depend on proof of “fault” or “error” on the part of government. The criminal system exists for the benefit of society, and all human systems will produce errors. The beneficiaries of the system (society) should pay (via taxation) for the harms the system imposes on private parties.
C: Conclusion
Perhaps in this post, Caplan was channeling MLK’s “I have a Dream” speech: “No, no, we are not satisfied and will not be satisfied until justice rolls down like water and righteousness like a mighty stream.”
MLK had many wonderful qualities, but an economist he was not. Evidence suggest that the incremental cost of securing water next to a mighty stream differs substantially from the incremental cost of securing justice. As a result, the socially optimal amount of justice will always be less that total justice. In other words, the optimal world will always have injustice.
Perhaps it’s not surprising that a minister would preach about injustice without acknowledging the cost of providing greater justice. And perhaps this explains Caplan’s post: He has put aside economics for preaching.
mark
Nov 12 2021 at 11:38pm
Caplan cites Huemer. So you seem to hit the sack, not the donkey.
Neither C. nor H. talk about ALL systems to provide legal justice. What they describe does e.g. NOT apply in my country (Germany). I am not afraid of our courts. Not even of our police. Incentives matter!
Arbitrage courts, anyone?
nobody.really
Nov 13 2021 at 4:39pm
Happy to hear about Germany. What do they do differently that produces these more salutary results?
Billy Kaubashine
Nov 12 2021 at 9:13pm
The solution to the problem doesn’t necessarily require any drastic change. A slight tweak to the burden of proof that would make it easier for a successful defendant to prove malicious or frivolous prosecution, and recover defense costs plus a penalty from both plaintiff and the plaintiff’s attorneys would give pause to many.
Loser pays is too extreme and would deter many plaintiffs with legitimate claims, and force many defendants to settle unnecessarily.
But subjecting the loser’s motives to scrutiny, based on the facts and legal arguments that were presented to the court, and penalizing frivolous or malicious litigants, would create incentive for self restraint.
steve
Nov 13 2021 at 10:41am
Seems odd to me that a libertarian would write this. A lot of the libertarian approach to externalities seems based upon avoiding laws and regulations since you can just take someone to court if externalities are an issue. What you point out here is that people are afraid of going to court because it will cost a lot and the outcomes are not always related to justice. Having the most money to spend on lawyers is often determinant.
Steve
Billy Kaubashine
Nov 13 2021 at 2:55pm
I remember reading years ago that attorneys in NYC had to hide their profession on rental applications because some landlords would avoid renting to potentially litigious tenants.
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