Comments
Adam , you may find , great interest here , in that post hereby (Geistfeld on Cost-Benefit Analysis , in ” TortsProf Blog ” . The blog itself , very recommended ) here :
http://lawprofessors.typepad.com/tortsprof/2018/05/geistfeld-on-cost-benefit-analysis.html
Posted by: El roam | May 8, 2018 10:50:28 AM
Excellent, thank you.
Posted by: Joseph | May 4, 2018 11:38:00 AM
Thanks for your thoughts, Joseph. At least in terms of the way scholars tend to write about the law, they rarely express their views in terms that we might call a portfolio of beliefs. Perhaps they sometimes say I believe theory X but if I’m wrong, I’m probably covered by theory Y as well. But I don’t think that’s the norm. (If anything, I think scholars are more likely to be pluralistic about values/theories, but that’s a little different.) Moreover, even if one accepts the idea that we should hold various theories with various levels of confidence, there are still lots of questions about how these levels of confidence will or should apply in the real world.
As for the prior post not “[striking you] as representing how people really think about issues,” I’d say that I’m not focused on the psychological perceptions of most people. I’m focused on the theorists who purport to justify punishment. So, for example, people who play roulette may not be calculating the odds of winning accurately, but statisticians should. Punishment theorists need to reach the right results and not fall back on how people typically perceive probabilities. Thanks again, and I hope you enjoy the article when you read it.
Posted by: Adam Kolber | May 3, 2018 6:54:10 PM
The concept of “portfolios of beliefs” strikes me as common sense (though I don’t mean to say it isn’t very useful to enunciate, as much common sense is these days). Are many people rule-bound in their thinking on these matters? (Myers-Briggs suggests an affirmative answer to me but it is a sincere query). To my mind, every theory has its limits and any percentages I would assign extend to those limits. So if I’m 80% textualist (merely illustrative) it’s because I think that is the limit of the usefulness of that approach. Thus in practice, I am 100% confident that a textualist approach is 80% useful – which I think is different than being 80% confident that textualism is the right approach.
Your post “What is Moral Risk?” was also thought provoking, as I think your framework helps to answer thorny questions. But also the simple dichotomy of the meat-eating hypothetical doesn’t ring true to me. Granted, it’s meant to be an illustration and I’m not fighting its usefulness on that score but the framing as “confidence” in a position didn’t strike me as representing how people really think about issues.
Per your hypothetical, I agree that if one thinks there is a 20% chance of great harm, it is wisest to avoid that course of action. If however, to borrow your hypothetical, I think eating meat is fine I’d say I have a 100% confidence in that. That isn’t to say I have no moral reservations that, for example, extends to treatment of animals before their slaughter. It means I think meat eating is 80% (or whatever number) okay, with other beliefs weighing in. Most people in this country wouldn’t eat cats and dogs. There are those who won’t eat animals they perceive as possessing intelligence. There are those who won’t eat animals capable of feeling pain. There definitely is a portfolio of beliefs at play. It is rare that a person thinks themself X% wrong.
I look forward to reading your article when I can in the near future.
Posted by: Joseph | May 3, 2018 4:54:25 PM
Just clarification to my last argument above concerning ” predictability ” : It is correct sometimes , also when the wrongdoing could be even predictable. That has to do typically , with the level of probability , or the investment needed for preventing the damage or harm. Typically , one can think , of a case , where huge investment is needed ( or was needed ) for preventing probable harm , but , the whole occurrence or configuration , bears the equation of such huge resources needed , and such a low probability , that it is rendered , unreasonable by all means in the eyes of the legislator . Thanks
Posted by: El roam | May 3, 2018 12:11:04 PM
Typically , what the respectable author of the post calls ” portfolios of beliefs ” stems rather not from legal theories , as from the understanding , that each case , bears unique configuration of givens : parties , strategy , liability, circumstances , procedure , history , criminal record ,current social phenomenon and more . Each given case , may differ so much from previous and futures , that finally , that is what may cause that uncertainty , and shall generate the implication of various theories .
Finally , in tort law , the utmost central term , is always : ” Predictability ” not necessarily the results or the wrongdoing , but rather :
Could the wrongdoer , really predict the outcome of his action or negligence . In this regard , the judge then , needs to observe , not the result , but , in retrospect the decision making of the wrongdoers . We are typically , very impressed by the result , yet , it is not so obvious in the eyes of the lawmaker and judges . Otherwise , the whole society and public authorities , shall be corrupt , and dragged to calculate every step in advance , and endlessly invest resources , for preventing potential damages from occurring . Then , we shall reach , huge disproportion, between : cost and benefits .
You know what , short case , go for it , you may understand it very well :
https://caselaw.findlaw.com/us-1st-circuit/1004677.html
Thanks
Posted by: El roam | May 3, 2018 11:48:10 AM