The rule of law: Why is predictability important?

by Ted Frank on June 6, 2007

As if to demonstrate that their website is simply reflexively anti-reform rather than anything to do with the justice they supposedly aspire to, one of their trolling bloggers attacks the American Justice Partnership for seeking predictability in the law (and does so by quoting a positively deranged anonymous blogger). Of course, predictability—that like cases are treated alike—is a fundamental component of the definition of justice. The social benefits of the rule of law are so obvious that it should hardly be necessary to list them, but, aside from issues of fundamental fairness enshrined in our Constitution in the ex post facto clause among other places, predictability has other advantages. If a result is predictable, settlement is easier: there’s little point in continuing to litigate on either side, because additional money spent on lawyers cannot change the result. If a result is predictable, one can more easily conform conduct to be law-abiding. Corporations aren’t incentivized to break contracts with one another to see whether they can get a better deal in the courts; individuals and corporations know where the line is in dealing with the public and won’t step over it. And as I noted last year,

In banana republics across the globe, economies come to a standstill because the risk of confiscation or corruption keeps many investments from ever happening. The same danger occurs when the expropriation is conducted by lawyers in the name of “justice.” If businessmen and entrepreneurs—be they insurers, manufacturers of lifesaving pharmaceuticals, or the small businesses that deliver your packages—have to account for the risk that their contractual arrangements will be disregarded by courts, they have to raise prices to account for that risk. Such increased prices mean fewer contracts are signed and fewer businesses are started. Consumers are worse off, not just because they now have fewer options, but because the economy is smaller as jobs and opportunities are lost. The only beneficiaries are the lawyers.

The poster knows darn well that the idea of predictability in justice hardly originates with Dan Pero and reformers. As I once noted to the same poster in a comment thread:

Since when is predictability a component of justice?

Since at least Aristotle, and arguably even further back to Mosaic law and the Code of Hammurabi.

If a desire for predictability in law makes one a reformer, then one can certainly add Plato, Thomas Aquinas, Montesquieu, Justice Holmes, and Lord Chief Justice Bingham of Cornhill to the list of reformers. More recently, one can read Richard Epstein on the subject. Justinian Lane would serve himself better by reading more books and fewer anonymous blogs before he asks such silly questions.

{ 12 comments }

1 Mahlon 06.06.07 at 10:27 am

The funny thing about the anti-reformists’ position is that increasing predictability in the law does not have anything to do with the merits of a particular case. If Congress makes a law that allows a private right of action for people injured by red-headed skateboarders who break wind on a sidewalk, (and assuming such a law would pass Constitutional muster) then so be it. They get their day in Court. Advocates of predictability are merely asking that the rules by applied consistently. There is nothing in the position which seeks to “close the courthouse doors.”

Baseball managers don’t mind if an umpire has a big strike zone, as long as he calls the pitches consistently for both teams.

2 James Fulford 06.06.07 at 12:17 pm

I’m all for predictability. In fact, outside the legal realm, the words “rule” and “law” are used to mean “something that’s predictable.”

Query: Why no link to the item you’re commenting on, or the “positively deranged” blogger?

3 Griffin3 06.06.07 at 1:37 pm

I think the idea is not to give unnecessary hits to the crazy folks, James. Anyone is free to look ‘em up, by why bother linking to something that will only interest the trolls?

4 Peter Nordberg 06.06.07 at 1:38 pm

Unpredictability, in the sense of utter randomness of outcome, is one thing. Bounded uncertainty about outcomes is another. In many areas of the law, bounded uncertainty may be a desirable structural component, because it has appropriate incentivizing effects. I’ve long believed, for example, that one problem with Daubert is that it makes predictions about admissibility unduly difficult. That tends to escalate transaction costs, promote deferral of settlement, and foster inconsistency of outcome as between similarly situated litigants. But I recognize the force of contrary arguments. Daubert doesn’t leave litigants absolutely bereft of guidance, and what room it leaves for uncertainty may push litigants to improve the reliability of their evidence, whereas brighter lines might incentivize people to settle for the barest reliability minimum.

5 E-Bell 06.06.07 at 1:54 pm

James, he doesn’t want to drive more traffic to that site. Seriously, no one seems to read it unless Overlawyered links to it.

6 Ubu Walker 06.06.07 at 2:01 pm

I don’t think anyone disputes that predictability is an important component of justice.

However, predictability is not the only component of justice. There is fairness, equity, public policy and efficiency, just to name a few.

Unfortunately, what the author of this blog is describing as “predictability” is not the application of the law to a specific set of facts which yields a consistent and repeatable result.

It is a desire to have laws which yield only one possible outcome based on any set of facts.

Essentially, the author wants a cookie-cutter application of the law to fit all situations with the goal of immunizing organizations from law suits, with no regard to the facts of the case, nuance, fairness, or other well established principles of law and equity.

Most areas of the law are well settled. Litigation is necessary only when there is a dispute as to the facts. In areas where the law is unclear or unsettled, there is, of course, great uncertainty. It is one of the risks of doing business in the gray area of the law.

If you don’t want to run the risk of being sued, don’t operate in the gray areas…but don’t expect to profit as greatly either. Lawyers can only tell you what is legal, what is not legal, and what isn’t clear. If you decide to play in the “not clear” area….you must accept the risks. Don’t whine when the judge doesn’t rule your way…its your own fault for not listening to your lawyer.

7 David Wilson 06.06.07 at 2:01 pm

Predictability is especially frustrated in the “damned if you, damned if you don’t” scenarios that occur from time to time in the law.

8 Ted 06.06.07 at 3:02 pm

If Ubu wishes to respond to what I have to say, it would be helpful if he would respond to positions I actually take rather than fictitious characterizations thereof.

9 Deoxy 06.06.07 at 3:44 pm

“Litigation is necessary only when there is a dispute as to the facts.”

Congratulations, Ubu, you’re a reformist!

Right now litigation is “required” whenever one party decides to file a lawsuit.

Facts?!? Ha! A good lawyer never lets those silly things get in the way!

You want proof of that? Read a few of the entries from this site documenting ridiculous lawsuits.

The guys who used outdoor glue indoors and got burned when the water heater kicked on? THEY WON. The “settled” area of law there was that the LARGE PRINT WARNING on the can (which they admitted they read) told them not to use it indoors.

ALL areas of law are “gray areas” right now. Find the right judge or jury, and you win, facts, equity, fairness, public policy, and efficiency be d—ed.

Heh – “efficiency” – yeah, that’s a BIG part of our legal system right now, eh? ROFLMAO.

“Don’t whine when the judge doesn’t rule your way…its your own fault for not listening to your lawyer.”

Really? So, when I DO “listen to [my] lawyer” (and thee vast majority of other lawyers, for that matter), and I STILL lose (a well-documented phenomenon), whose fault is that?

10 Mahlon 06.06.07 at 4:30 pm

Ubu – You obviously can’t grasp the fact that the lack or predictability makes the whole world a gray area.

I’m a Plaintiff’s lawyer and the lack of predictability can make it MORE difficult for my clients to get their day in Court. The attitude that has infected the entire judicial system (the law is a mere suggestion) also encourages defense lawyers to roll the dice with a trial. Guess what? This can hurt a consumer who just wants a quick reasonable resolution to his claim. My opinion is that the lack or predictability actually hurts Plaintiffs as much as Defendants.

All this to say – you couldn’t be more wrong.

11 William Nuesslein 06.06.07 at 7:36 pm

Mr. Nordberg,

If the rule was “anything goes”, then Daubert would seem to add the cost of separtly testing the scientific theory of a case. But that testing was being done, in theory and at some cost, by incompetent jurors.

To the extent that Daubert adds zeros to payments from junk science cases, the expected take by Plaintifs is reduced. I see that as social benefit, not a social cost.

12 Joe Bingham 06.07.07 at 12:17 am

Re: TF’s comment at TDF.

Zing!

Re: Ubu’s comment here.

“…with the goal of immunizing organizations from law suits.” Gniz. You assume legal uncertainty hurts only organizations. It’s true that they’re more often victims (deeper pockets are at greater risk), but they’re not the exclusive victims. This is probably your first time at Overlawyered; come back and keep up so you can see what I mean.

Of course, even of corporations were the only victims of legal uncertainty, corporations, after all, are owned by people, are run by people, employ people, and serve people. Using the word “organizations” may hide, but does not change the fact that institutionalized lawlessness hurts people.

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