Considerations of justice Considerations of justice in western legal institutionsin western legal institutions

By Gordon L. BradyBy Gordon L. Brady12 July 200612 July 2006

Outline:Outline: 1. discuss the competing concepts 1. discuss the competing concepts

of justice and fairness of justice and fairness 2. provide examples 2. provide examples 3. develop an analytical framework 3. develop an analytical framework 4. apply the analytical framework 4. apply the analytical framework

more broadly to specific examples. more broadly to specific examples.

QueryQuery Would you think it would always be a Would you think it would always be a

more “just” system if we allowed more “just” system if we allowed judges to take into account an judges to take into account an expansive set of considerations in expansive set of considerations in deciding cases?deciding cases?

Statement attributed to my Irish Statement attributed to my Irish grandmothergrandmother

““you must take the bitter with the you must take the bitter with the better.”better.”. .

““better” is the ability to argue better” is the ability to argue injustice in order to extricate yourself injustice in order to extricate yourself from a situation which is bad for you from a situation which is bad for you personally.  personally. 

The “bitter”The “bitter” o exposure of the litigant to more risks o exposure of the litigant to more risks o exposure to fundamentally different o exposure to fundamentally different

risks, risks, o lack of predictability in outcome, o lack of predictability in outcome, o loss of authority to judges,o loss of authority to judges, o transactions cost, o transactions cost, o rent seeking, involving efforts to set o rent seeking, involving efforts to set

up legal structures to transfer resources to up legal structures to transfer resources to specific groups (e.g., probate lawyers, specific groups (e.g., probate lawyers, bankruptcy bar, tax lawyers)bankruptcy bar, tax lawyers)

Most every college-age student can relate to the Most every college-age student can relate to the following example: You are considering a following example: You are considering a

diamond engagement ring.diamond engagement ring.

Pop the question. The perfect engagement ring willPop the question. The perfect engagement ring will get you the answer you're hoping for. Find the ide get you the answer you're hoping for. Find the ideal ring now!al ring now!

Shop at Diamond Mart. Shop at Diamond Mart.

Later that day . . . Later that day . . . Crazy Eddie’s Diamond Hut Crazy Eddie’s Diamond Hut

advertises “always 25% less advertises “always 25% less than Diamond Mart. We cater to than Diamond Mart. We cater to college students and their college students and their friendsfriends.”.”

Is there a basis for legal action?Is there a basis for legal action?

Did the salesperson misstate the Did the salesperson misstate the qualities of the diamond? No. qualities of the diamond? No.

Were you impaired by alcohol or Were you impaired by alcohol or prescription drugs improperly prescription drugs improperly combined? No. combined? No.

Your only beef is that he didn’t tell Your only beef is that he didn’t tell you about a cheaper price down the you about a cheaper price down the street at Crazy Eddie’s.street at Crazy Eddie’s.

What is “justice” in this What is “justice” in this situation?situation?

A judicial policy of unbridled A judicial policy of unbridled examination, i.e., no rules. examination, i.e., no rules.

ThisThis is what you get if a deity would is what you get if a deity would come down from heaven with full come down from heaven with full knowledge of all relevant facts and knowledge of all relevant facts and issue a “perfectly just” ruling based issue a “perfectly just” ruling based on the peculiar characteristics of the on the peculiar characteristics of the case. case.

Bright line Rules – the polar Bright line Rules – the polar opposite of unbridled discretionopposite of unbridled discretion

o simple, o simple, o easy to administer, o easy to administer, o everyone understands what o everyone understands what

they are, and they are, and o provide invariant and easily o provide invariant and easily

predictable outcomes unaffected by predictable outcomes unaffected by case specific facts. case specific facts.

repercussions of unbridled rulesrepercussions of unbridled rules

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

ApplicationsApplications Landlord and tenantsLandlord and tenants Purchase contractsPurchase contracts

Transaction costs Transaction costs

Research, Research, Evaluation of potential outcomes,Evaluation of potential outcomes, Bargaining with various parties to the Bargaining with various parties to the

transaction, transaction, expert evaluation, expert evaluation, enforcement after the decision, and enforcement after the decision, and Individual time costs of resolving the Individual time costs of resolving the

issue.issue.

Drawbacks to unbridled discretion by judges where Drawbacks to unbridled discretion by judges where

“everything is up for grabs.” “everything is up for grabs.” Increased uncertainty/risk due to Increased uncertainty/risk due to

individual biases of judges.individual biases of judges. Error in interpreting facts.Error in interpreting facts. Inevitable subjectivity in evaluating Inevitable subjectivity in evaluating

competing interests to render competing interests to render decisions. decisions.

Social scientists subdivide Social scientists subdivide errors into Type 1 and Type 2errors into Type 1 and Type 2

Type 1 error -- false positive - Type 1 error -- false positive - calling a contract fair (valid) calling a contract fair (valid) when it is not. when it is not.

Type 2 error -- false negative - Type 2 error -- false negative - calling a contract unfair (invalid) calling a contract unfair (invalid) when it is not --when it is not --

Some of the costs of reforming Some of the costs of reforming contracts contracts

Bundling rights is costlyBundling rights is costly

Risks of adverse finding to litigantsRisks of adverse finding to litigants

Applications of this analysisApplications of this analysis Paramour Laws – was conduct truly Paramour Laws – was conduct truly

premeditated and evaluation of the premeditated and evaluation of the “heat of passion”. “heat of passion”.

Antitrust laws – classic example of Antitrust laws – classic example of Type 1 and Type 2 errors, e.g., Type 1 and Type 2 errors, e.g., merger analysis or monopolization.merger analysis or monopolization.

Summary Summary I am seeking to engage students to think about justice and I am seeking to engage students to think about justice and to realize that efforts to obtain fair outcomes in individual to realize that efforts to obtain fair outcomes in individual cases may not advance the cause of justice broadly cases may not advance the cause of justice broadly defined.defined.

  While being preventing from making tradeoffs in individual While being preventing from making tradeoffs in individual cases may seem unfair, strict rules may paradoxically yield cases may seem unfair, strict rules may paradoxically yield greater justice.  greater justice. 

     This is because  the weighing of tradeoffs is rife with error This is because  the weighing of tradeoffs is rife with error

and prejudice and yields uncertain outcomes. and prejudice and yields uncertain outcomes.   

Greater certainty and efficiency Greater certainty and efficiency If outcomes for specific categories of cases are relatively If outcomes for specific categories of cases are relatively certain, this may facilitate efficient decision making by certain, this may facilitate efficient decision making by private individuals.  private individuals. 

  As a backdrop to this discussion is the question of whether As a backdrop to this discussion is the question of whether common law processes yield efficient socially desirable common law processes yield efficient socially desirable outcomes.  This remains a subject of debate among legal outcomes.  This remains a subject of debate among legal scholars such as Posner and his critics. scholars such as Posner and his critics. 

  The strength of this course, properly presented is that it The strength of this course, properly presented is that it may help students develop an analytical framework and may help students develop an analytical framework and reasoning skills which will be useful in assessing a host of reasoning skills which will be useful in assessing a host of contemporary public policy controversies.contemporary public policy controversies.