Considerations of justice in western legal institutions

1. Considerations of justice in western legal institutions By Gordon L. Brady12 July 2006

2. Outline: • 1. discuss the competing concepts of justice and fairness • 2. provide examples • 3. develop an analytical framework • 4. apply the analytical framework more broadly to specific examples.

3. Query • Would you think it would always be a more “just” system if we allowed judges to take into account an expansive set of considerations in deciding cases?

4. Statement attributed to my Irish grandmother • “you must take the bitter with the better.”. • “better” is the ability to argue injustice in order to extricate yourself from a situation which is bad for you personally. 

5. The “bitter” • o exposure of the litigant to more risks • o exposure to fundamentally different risks, • o lack of predictability in outcome, • o loss of authority to judges, • o transactions cost, • o rent seeking, involving efforts to set up legal structures to transfer resources to specific groups (e.g., probate lawyers, bankruptcy bar, tax lawyers)

6. Most every college-age student can relate to the following example: You are considering a diamond engagement ring.

7. Pop the question. The perfect engagement ring will get you the answer you're hoping for. Find the ideal ring now! Shop at Diamond Mart.

8. Later that day . . . • Crazy Eddie’s Diamond Hut advertises “always 25% less than Diamond Mart. We cater to college students and their friends.”

9. Is there a basis for legal action? • Did the salesperson misstate the qualities of the diamond? No. • Were you impaired by alcohol or prescription drugs improperly combined? No. • Your only beef is that he didn’t tell you about a cheaper price down the street at Crazy Eddie’s.

10. What is “justice” in this situation? • A judicial policy of unbridled examination, i.e., no rules. • Thisis what you get if a deity would come down from heaven with full knowledge of all relevant facts and issue a “perfectly just” ruling based on the peculiar characteristics of the case.

11. Bright line Rules – the polar opposite of unbridled discretion • o simple, • o easy to administer, • o everyone understands what they are, and • o provide invariant and easily predictable outcomes unaffected by case specific facts.

12. repercussions of unbridled rules • It is true that I got taken by the jeweler and paid too much for the diamond I got. Stated another way – I just got less diamond than I could have gotten in a perfect information world. But what about the other guy who gets too much?

13. Applications • Landlord and tenants • Purchase contracts

14. Transaction costs • Research, • Evaluation of potential outcomes, • Bargaining with various parties to the transaction, • expert evaluation, • enforcement after the decision, and • Individual time costs of resolving the issue.

15. Drawbacks to unbridled discretion by judges where “everything is up for grabs.” • Increased uncertainty/risk due to individual biases of judges. • Error in interpreting facts. • Inevitable subjectivity in evaluating competing interests to render decisions.

16. Social scientists subdivide errors into Type 1 and Type 2 • Type 1 error -- false positive - calling a contract fair (valid) when it is not. • Type 2 error -- false negative - calling a contract unfair (invalid) when it is not --

17. Some of the costs of reforming contracts • Bundling rights is costly • Risks of adverse finding to litigants

18. Applications of this analysis • Paramour Laws – was conduct truly premeditated and evaluation of the “heat of passion”. • Antitrust laws – classic example of Type 1 and Type 2 errors, e.g., merger analysis or monopolization.

19. Summary I am seeking to engage students to think about justice and to realize that efforts to obtain fair outcomes in individual cases may not advance the cause of justice broadly defined. While being preventing from making tradeoffs in individual cases may seem unfair, strict rules may paradoxically yield greater justice.    This is because  the weighing of tradeoffs is rife with error and prejudice and yields uncertain outcomes. 

20. Greater certainty and efficiency If outcomes for specific categories of cases are relatively certain, this may facilitate efficient decision making by private individuals.  As a backdrop to this discussion is the question of whether common law processes yield efficient socially desirable outcomes.  This remains a subject of debate among legal scholars such as Posner and his critics.  The strength of this course, properly presented is that it may help students develop an analytical framework and reasoning skills which will be useful in assessing a host of contemporary public policy controversies.