Now that many cities' judges and prosecutors have become politically corrupt, the calculation changes. For example, in Portland the police will do nothing to Antifa members if they rob or bully you, but will put you in prison if you try to defend yourself. The only obvious remedy is not to live there, but many US and European cities are like that now.
I'll actually compound the problem, for the naive the challenge is you learn that lesson after getting sentenced 5-20 at which point it's too late. Strong believe there should be an automatic mandatory "voluntary exile" for anyone that wasn't born in and raised in a locality, i.e. "ignorance is a defense because you are a foreigner, GTFO and never come back".
While I usually think that personal injury tort judgments overstate the damage to the plaintiff, there is one very important exception. The survivors of a murder (or other wrongful death) victim cannot collect for the value to the victim of the victim's life, as deduced from, e.g., the victim's investments in safety.
That leaves potential wrongful-death-tortfeasors with an incorrectly low incentive to avoid harming the prospective victims. As to those from whom nobody derives material gain (including without limitation imputed material gain, such as consortium), the tort law does not protect them at all against wrongful death!
That result is intolerable, especially if you abolish the criminal law.
It seems to me likely that recovery for "intentional infliction of emotional distress" is a legal fiction covering for the fact that there is, as above, no tort recovery even for manslaughter and murder.
Can you rewrite that one in English man for the laity. I think I get what you are saying but I'm not confident. Also there are no "survivors of a murder victim", they were murdered. There is modern fictional claim "their family" and sometimes expanded to "their financial dependents" but honestly that went out the window, or should have, with the US throwing out pater familias post-Feminism. Society would have a "future tax revenue" claim on that murder but that's already captured under criminal law via "fine" and I'm of the strong belief the state should be precluded from a tort as the plaintiff in all instances hence tort isn't relevant for murder.
The survivors of a dead person are his next of kin, or other persons to whom his estate, if any, would go. Murder victims have survivors--often their spouses--just as other dead people do.
You may not like this locution. You may think it old-fashioned or even (aghast!) unfeminist. Write your state legislator.
I am arguing that it is a bad idea to get rid of the criminal law of homicide, because the tort of wrongful death doesn't pay enough. And moreover that the tort of wrongful death should be reformed in that respect. If there are words in those two sentences that you don't understand, look them up now. Argument follows.
Assume away the criminal law. All the law that protects you against crime is the tort law. (Tax doesn't enter into it. Where did you get that idea?) In particular, all the law that protects you from a murderer is that the murderer has to pay damages to your family--if you have family. How much does he have to pay? Not much.
If you and your wife make about the same amount, she typically gets nothing, except for "consortium," a legal payment for--how to put this in a civilized manner?--the commercial value of the pleasure of your intimate company. She may receive a bonus for "intentional infliction of emotional distress" to her--pretending that was his intention--for what that's worth, which is not much.
Your minor children, if you have any, get the equivalent of child support. Your aged parents and down-at-luck sibling, to whom you recognize a moral but have no legal obligation of support, get nothing.
So, is this much expense for him or protection for you? I argue that it is not.
In all likelihood, it is not nearly as much protection as the tort law provides you from him breaking your leg and spleen in a car accident.
Which payments do you mean? The “intentional infliction of emotional distress”? I think that was judge-made, although it does seem to me like legislation, which is to say (almost always), bad legislation. However, victim restitution payments are strictly statutory.
We went a different direction on that but regardless thank you for expanding. I have some thoughts on it but busy with Easter so I'll circle back maybe tomorrow but fundamentally I don't disagree on explanation as is.
As for how a tort would be effective here, I agree it mostly wouldn't (which is my point) but I'll let Chartopia jump in here and correct us both as I know he has strong, and well documented, thoughts on this and his own substack. He can fight the “everything should be a tort, no criminal law” battle :)
Since we agree that the criminal law of homicide should not be abolished, what does it mean to say that we went in a different direction? It appears to me that we went in the same direction.
Is Chartopia supposed to be some kind of authority?
So far your argument only implies that the criminal law of homicide should not be abolished until the corresponding tort law is fixed, which you appear to believe it should be.
On that last part (sorry quick response, bus) no, he's just our resident crank (<3) on EVERYTHING should be a tort and tort only and has written quite extensively on it. I assume he will pipe in here as soon as he sees your comment.
It generally goes something along the line anyone with a unpaid judgement is outside the law and free to be killed sort of like a caste system / persona non grata or in yesteryear exiles if they returned hence if you wanted judgement/justice and couldn't collect, you, or anyone, could just execute or enslave them hence with infinite tort everyone has an incentive to behave given no legal protection if you can't pay. That's a million mile stawman view of his argument.
As an example of a crime more easily prevented than deterred, assault comes to mind.
"Hit me, I dare you. I'll sue you for everything you've got."
If the state got everything instead, they'd be more incentivized to deescalate. It's not easily deterred because people are not acting rational when they're face to face yelling at each other.
> "Hit me, I dare you. I'll sue you for everything you've got."
Aren't the vast majority of criminals judgment proof? You need the rare intersection of good time preference and conscientiousness enough to build assets + enough violent or impulsive tendencies to actually engage in crime. Those are directly pulling in opposite directions, the selection effects are huge on both ends.
Unless you run into a violent person who recently inherited wealth and hasn't squandered it yet (also seems rare!) I just don't see how this "go ahead, I'll sue you" strategy ever pays off.
I read that the opposite, my bad, been a long day. Deleting. I thought you were advocating replacing all torts with criminal law when it comes to assault and that that would magically fix the problem.
The part you are missing, which David touched on, is in most of America, YOU have no way to pursue a criminal harm, i.e. if your boss is literally raping you every single day, you can report it until hell freezes over but if the local prosecutor doesn't want to prosecute him, he can do so with impunity forever. Tort allows you an avenue to privately purse your claim. Tort isn't about prevention, it's about redressing (I think that's the right word there) harms. Granted he could still keep on raping you if he was Elon Musk even with tort but one would like to think as some point a judge would make the punitive damage even even Elon Musk would have to stop, if not after the first, maybe the twentieth time that month.
"Stop or I'll sue" tells the rational person "I don't care if you your best friends with the cops or your cousin in the mayor, I have a way to go after you regardless of that".
Something you didn't touch and it's something I wish the courts would enforce, is refusing to the point of making the laws unconstitutional "victim rights" laws and that includes any "victim" impact statement, any consideration for the impact on the "victim", etc. They aren't victims, they are WITNESSES. The impact on them is irrelevant, that's the tort to your point. It's long been a travesty in modern US law and it's getting worse with "victim" inclusion becoming mandatory especially as "victims", or more often their families, are anything but objective and thinking about the actual victim, "the state" (society).
Under common law it made sense because you could have PRIVATE criminal cases, and places like England still allow as do I believe one US state for misdemeanors only, but when it's "state vs.", no, there is no "victim" to speak. Modern US criminal law as turned into criminalized tort and that does nothing but purpurate injustice given it's selectiveness, i.e. the state arbitrarily decides which "victims" claims to prosecute preferring one over another often by class and that isn't just nor impartiality before the law.
An obvious example of offense easier prevented than deterred is theft of cryptocurrrency. It was designed in the first place to be defendable (defensible?) in a sovereign manner, using affordable, consumer-grade computing hardware and software. I agree that it should be neither a crime nor a tort.
An important difference between the Chinese case you describe and formal tort law systems is that the latter can support the compilation of *reputations*, which can reduce incident rates over time.
Now that many cities' judges and prosecutors have become politically corrupt, the calculation changes. For example, in Portland the police will do nothing to Antifa members if they rob or bully you, but will put you in prison if you try to defend yourself. The only obvious remedy is not to live there, but many US and European cities are like that now.
I'll actually compound the problem, for the naive the challenge is you learn that lesson after getting sentenced 5-20 at which point it's too late. Strong believe there should be an automatic mandatory "voluntary exile" for anyone that wasn't born in and raised in a locality, i.e. "ignorance is a defense because you are a foreigner, GTFO and never come back".
While I usually think that personal injury tort judgments overstate the damage to the plaintiff, there is one very important exception. The survivors of a murder (or other wrongful death) victim cannot collect for the value to the victim of the victim's life, as deduced from, e.g., the victim's investments in safety.
That leaves potential wrongful-death-tortfeasors with an incorrectly low incentive to avoid harming the prospective victims. As to those from whom nobody derives material gain (including without limitation imputed material gain, such as consortium), the tort law does not protect them at all against wrongful death!
That result is intolerable, especially if you abolish the criminal law.
It seems to me likely that recovery for "intentional infliction of emotional distress" is a legal fiction covering for the fact that there is, as above, no tort recovery even for manslaughter and murder.
Can you rewrite that one in English man for the laity. I think I get what you are saying but I'm not confident. Also there are no "survivors of a murder victim", they were murdered. There is modern fictional claim "their family" and sometimes expanded to "their financial dependents" but honestly that went out the window, or should have, with the US throwing out pater familias post-Feminism. Society would have a "future tax revenue" claim on that murder but that's already captured under criminal law via "fine" and I'm of the strong belief the state should be precluded from a tort as the plaintiff in all instances hence tort isn't relevant for murder.
The survivors of a dead person are his next of kin, or other persons to whom his estate, if any, would go. Murder victims have survivors--often their spouses--just as other dead people do.
You may not like this locution. You may think it old-fashioned or even (aghast!) unfeminist. Write your state legislator.
I am arguing that it is a bad idea to get rid of the criminal law of homicide, because the tort of wrongful death doesn't pay enough. And moreover that the tort of wrongful death should be reformed in that respect. If there are words in those two sentences that you don't understand, look them up now. Argument follows.
Assume away the criminal law. All the law that protects you against crime is the tort law. (Tax doesn't enter into it. Where did you get that idea?) In particular, all the law that protects you from a murderer is that the murderer has to pay damages to your family--if you have family. How much does he have to pay? Not much.
If you and your wife make about the same amount, she typically gets nothing, except for "consortium," a legal payment for--how to put this in a civilized manner?--the commercial value of the pleasure of your intimate company. She may receive a bonus for "intentional infliction of emotional distress" to her--pretending that was his intention--for what that's worth, which is not much.
Your minor children, if you have any, get the equivalent of child support. Your aged parents and down-at-luck sibling, to whom you recognize a moral but have no legal obligation of support, get nothing.
So, is this much expense for him or protection for you? I argue that it is not.
In all likelihood, it is not nearly as much protection as the tort law provides you from him breaking your leg and spleen in a car accident.
Even those payments, if I remember correctly, come not from common law, which is what Posner argued was efficient, but from legislation.
Which payments do you mean? The “intentional infliction of emotional distress”? I think that was judge-made, although it does seem to me like legislation, which is to say (almost always), bad legislation. However, victim restitution payments are strictly statutory.
We went a different direction on that but regardless thank you for expanding. I have some thoughts on it but busy with Easter so I'll circle back maybe tomorrow but fundamentally I don't disagree on explanation as is.
As for how a tort would be effective here, I agree it mostly wouldn't (which is my point) but I'll let Chartopia jump in here and correct us both as I know he has strong, and well documented, thoughts on this and his own substack. He can fight the “everything should be a tort, no criminal law” battle :)
Since we agree that the criminal law of homicide should not be abolished, what does it mean to say that we went in a different direction? It appears to me that we went in the same direction.
Is Chartopia supposed to be some kind of authority?
So far your argument only implies that the criminal law of homicide should not be abolished until the corresponding tort law is fixed, which you appear to believe it should be.
It is late in my time zone. I’ll save criminal homicide maybe tomorrow.
On that last part (sorry quick response, bus) no, he's just our resident crank (<3) on EVERYTHING should be a tort and tort only and has written quite extensively on it. I assume he will pipe in here as soon as he sees your comment.
It generally goes something along the line anyone with a unpaid judgement is outside the law and free to be killed sort of like a caste system / persona non grata or in yesteryear exiles if they returned hence if you wanted judgement/justice and couldn't collect, you, or anyone, could just execute or enslave them hence with infinite tort everyone has an incentive to behave given no legal protection if you can't pay. That's a million mile stawman view of his argument.
I think you may be confusing a caste system with a feud system.
As an example of a crime more easily prevented than deterred, assault comes to mind.
"Hit me, I dare you. I'll sue you for everything you've got."
If the state got everything instead, they'd be more incentivized to deescalate. It's not easily deterred because people are not acting rational when they're face to face yelling at each other.
> "Hit me, I dare you. I'll sue you for everything you've got."
Aren't the vast majority of criminals judgment proof? You need the rare intersection of good time preference and conscientiousness enough to build assets + enough violent or impulsive tendencies to actually engage in crime. Those are directly pulling in opposite directions, the selection effects are huge on both ends.
Unless you run into a violent person who recently inherited wealth and hasn't squandered it yet (also seems rare!) I just don't see how this "go ahead, I'll sue you" strategy ever pays off.
I don't think it's a good strategy, but I've seen clips of people saying it.
I've also seen clips of reasonable well off people get angry and do stupid things. Will Smith at the Oscars is a famous example.
You don't think the quote I gave is a realistic way to increase the probability of further escalation?
And it being something people might say is dependant on the legal system.
I read that the opposite, my bad, been a long day. Deleting. I thought you were advocating replacing all torts with criminal law when it comes to assault and that that would magically fix the problem.
The part you are missing, which David touched on, is in most of America, YOU have no way to pursue a criminal harm, i.e. if your boss is literally raping you every single day, you can report it until hell freezes over but if the local prosecutor doesn't want to prosecute him, he can do so with impunity forever. Tort allows you an avenue to privately purse your claim. Tort isn't about prevention, it's about redressing (I think that's the right word there) harms. Granted he could still keep on raping you if he was Elon Musk even with tort but one would like to think as some point a judge would make the punitive damage even even Elon Musk would have to stop, if not after the first, maybe the twentieth time that month.
"Stop or I'll sue" tells the rational person "I don't care if you your best friends with the cops or your cousin in the mayor, I have a way to go after you regardless of that".
https://daviddfriedman.substack.com/p/the-kings-friends
Something you didn't touch and it's something I wish the courts would enforce, is refusing to the point of making the laws unconstitutional "victim rights" laws and that includes any "victim" impact statement, any consideration for the impact on the "victim", etc. They aren't victims, they are WITNESSES. The impact on them is irrelevant, that's the tort to your point. It's long been a travesty in modern US law and it's getting worse with "victim" inclusion becoming mandatory especially as "victims", or more often their families, are anything but objective and thinking about the actual victim, "the state" (society).
Under common law it made sense because you could have PRIVATE criminal cases, and places like England still allow as do I believe one US state for misdemeanors only, but when it's "state vs.", no, there is no "victim" to speak. Modern US criminal law as turned into criminalized tort and that does nothing but purpurate injustice given it's selectiveness, i.e. the state arbitrarily decides which "victims" claims to prosecute preferring one over another often by class and that isn't just nor impartiality before the law.
An obvious example of offense easier prevented than deterred is theft of cryptocurrrency. It was designed in the first place to be defendable (defensible?) in a sovereign manner, using affordable, consumer-grade computing hardware and software. I agree that it should be neither a crime nor a tort.
An important difference between the Chinese case you describe and formal tort law systems is that the latter can support the compilation of *reputations*, which can reduce incident rates over time.