Cheater Finder Fee?

Today tort law lets folks sue others for harms outside the scope of a contract. Consider:

If it would have been hard for you to negotiate a deal where someone might pay you for your help, the law might also want to let you sue that person, asking for some estimate of the value of the help you gave.

Half of my recent law & econ final exam was to analyze:

If A informs B that spouse C is cheating on B with D, should A be able to sue B for compensation for this service?

My forty students mostly disagreed; 50% of A students and 75% of below A students said no.  The obvious pro arguments are less cheating and earlier discovery of cheating. Con arguments:

  • Estimating value gained is hard; only count cash gains.
  • They could have paid someone else to check for cheating.
  • Many spouses would rather not know of cheating.
  • The cheating spouse and partner lose if exposed.
  • Some might make fake evidence to gain money.
  • Some might entrap folks into cheating.
  • The legal process is costly, as is law change.

Now fraud and entrapment could be obvious exceptions, and the cost of law argues equally against all law.  The difficulties and signaling penalties of contracting with folks well placed to notice incriminating evidence suggests we apply tort law principles.  And only paying a fraction of cash gained in a divorce settlement would mainly help wives, who get most such cash.

Instead, I’d suggest a standard finder’s fee of 5% of annual income for the first direct clear evidence of cheating in a declared exclusive relation (e.g., marriage) lasting over two years.  This seems to me a conservative estimate of an average value of learning that your spouse is cheating, while still enough to induce lots more stranger efforts.

My students also opposed cuckolded men suing for compensation; some said it was his fault too if she was unsatisfied.  It seems most students think cheating should not be discouraged more than it is; if cheating seems a good bet to you given your chance and level of punishment, they seem to say go for it.  Yes they might not want to say it that directly, but is there any other contrary data out there?

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  • Violet

    If A informs B that spouse C is cheating on B, should A be able to sue B for compensation for this service?

    A and B have not signed a contract with each other, so B should not be liable for A if A reveals some information. A can always try to sell that information to B or B can hire an A (a private detective typically).

    The whole notion of telling something and suing afterwards to get money sounds very alien from an European perspective. (or maybe I am misunderstanding your terminology).

    • I just added a sentence about why contracting might be hard – had meant to do that before.

    • Douglas Knight

      The whole notion of telling something and suing afterwards to get money sounds very alien from an European perspective.

      In Germany, third parties can send cease-and-desist letters about trademark infringement and then bill the trademark owner.

  • Bill

    How can there be an implied contract when there is no reasonable reliance. You can have implied contracts, but you have to have reasonably relied on the other person first to lead you to offer something. You could get a contract with someone saying: If you agree to pay me x, I will tell you something relating to…. Then you would have reasonable reliance if the person said: OK, tell me. But, if you came up to the person and blurted out: your wife is sleeping around….there is no reasonable reliance that would establish a quasi or implied contract. You just gave a freebie. As this piece of legal advice is.

  • I don’t see that this has anything specifically to do with cheating (other than sex and infidelity attract more clicks).

    Robin (and everyone else reading this blog), I strongly recommend that you read Joseph Williams 10 Lessons in Clarity and Grace, the best book on writing ever.

    Now I am going to sue every reader of this blog for $1, which is what I estimate the value of that advice be. Right after I sue Robin to get the IP addresses of his readership. (Actually, I will start by suing everyone I have ever had over to dinner.)

    Of course, if I have success with any of this, Robin will sue me, since I got the idea of charging people for things they didn’t ask for.

    Hmmmm….maybe it isn’t such a good idea after all to allow people to sue for the value of information or items given away freely without any expectation that payment will be asked for, especially when receipt can’t even be avoided.

    • Thomas M. Hermann

      This is by far the best response I’ve seen to a post on this blog, my $1 is in the mail. It has taken me a while to realize that the author’s points aren’t always clearly stated, at least to me, and that my responses don’t address the intended point. I initially attributed it to poor reading comprehension on my part or ignorance of the subject domain.

    • Jess Riedel

      > I don’t see that this has anything specifically to do with cheating (other than sex and infidelity attract more clicks).

      I don’t think Robin is suggesting that we should considering allowing suits for all possible positive externalities. Only those specific cases where there is a market failure preventing people from entering into contracts.

      Nothing prevents you from selling the advice to Robin directly, so there is no need for government intervention.

      • Again, I don’t see anything special about cheating in this case. The current death throes of newspapers show how hard it is to contract for the transfer of information, so why couldn’t the same argument justify newspapers printing information and then suing for the value of its constructive receipt?

  • Timothy Brownawell

    So what happens when 20 different people all come to you with this evidence (say, you’re somewhat well known locally and the cheating isn’t well hidden)?

    What if you already knew, or just don’t particularly care?

    More generally, this seems like it would add an incredible cost (risk) to participating in society, where if someone is able to do something believed to be to your benefit then they can demand that you pay them (and of course someone would have to pay the court costs). It seems much safer to just assume that it all more-or-less balances out in the end, or to rely on more lightweight social rules rather than heavy legal rules (like how tipping your waiter at a restaurant is a social rule).

    • magfrump

      I’m not so sure about the “safer to assume” bit at the end. What I do agree with is that allowing law suits for giving someone advice is essentially saying that society approves of a given piece of advice–that is, being aware of cheating.

      Robin, you assign a specific value to this advice, I very much doubt that society-at-large shares that value, or more specifically that a defendant and a judge/jury would share values closely enough to make this fair rather than making this an imposition of values.

  • Phil

    Didn’t it use to be that if you cheated on your spouse, it would reflect on your entitlements in divorce? For instance, if you cheated, you would be awarded less alimony.

    Of course, it’s a pain in the butt for courts to listen to everything and decide if the infidelity was justified. And why just infidelity? Why not punish a spouse for rudeness? And maybe rich men would try to secretly tempt their wives with beautiful rich other men if they were intending to divorce anyway.

    Still, it seems strange that poor person X can marry rich person Y, immediately start being unfaithful, and get a nice financial settlement anyway.

    And sometimes it might be unfair to the cheater him/herself. For instance, person E can marry obscenely rich person T, knowing that there’s a certain chance T will be unfaithful, and then E can hit the jackpot financially in a divorce.

    • anon

      True, divorce settlements can be unfair to richer spouses. But legal rulings are often skewed against the rich; this is not specific to divorce cases. And it has little to do with whether we should use negative liability to deter cheating.

      • Violet

        Stronger prenuptial agreements might help here.

      • Psychohistorian

        The rich have better lawyers and make better targets, so this bias actually has counterbalances.

  • anon

    Revised question: If A informs B that his spouse is cheating on him, and B acts on this information in a way which would reasonably be considered to benefit B, should A be able to sue B for a fraction of the estimated benefit? My guess is that most of your students would say yes he should, even if B receives no monetary gain.

    It’s actually quite dubious that cheating should be punished any more than it is already, given that its social costs are so unclear. Perhaps we mostly value lack of cheating as a commitment device, or as a signal of trustworthiness and “showing that you care”. Nevertheless, if some level of deterrence is needed, negative liability could achieve this level at lower cost than other methods.

  • ShardPhoenix

    Huh? Maybe I’m not getting this post, but it seems nuts to allow people to be sued for involuntarily receiving unsolicited advice when not under any contract.

  • ShardPhoenix

    It occurs to me that a similar scenario is when an unconscious person can be picked up by an ambulance and taken to hospital, and later charged for the privilege. However, in that case the liability (presumably) goes both ways – if the ambulance people screw up sufficiently to cripple or kill someone who would otherwise have been fine, they can be sued for it by the person or surviving relatives.

    Perhaps in this divorce scenario, the liability should also go both ways – if the person receiving the advice divorces and makes a profit, the adviser should receive a cut of the profits, while if the advisee makes a loss, the adviser should have to pay part of it in compensation.

    I’m still not in favour of the idea in general though.

  • Bill and Violet, tort law is all about suits without implied contracts.

    Robert, you could similarly assume that because we allow suits for auto accidents we must allow suits for all possible imagined harms; I don’t have to argue for every possible suit type to argue for this particular type.

    Timothy, as usual a finder’s fee goes to the first finder.

    Shard, “it seems nuts”; now why didn’t I think of that. I guess I should retract the post.

    • ShardPhoenix

      Robin: well, obviously you post a lot of stuff that might “seem nuts” to most people, but usually you explain it well enough that it seems reasonable even if I don’t agree with it. Here it just seems wrong, so maybe this time you didn’t explain it as well.

      • Tyrrell McAllister

        Here it just seems wrong, so maybe this time you didn’t explain it as well.

        I also found Robin’s argument here hard to understand. This seems to be a case where focusing on a specific example (cheaters) just obscures things.

        Robin makes the same general point much better at the page he linked to. As I read it, the issue he’s raising is basically this: One justification for tort is that it works as a sort of post hoc market for harms. For example, maybe you would have agreed to let me pollute your land for a certain fee, but this contract is difficult to arrange in advance. So, instead, we use tort to settle the details of the exchange after the fact. That is, tort is a way to settle post hoc how much I should pay you for harming you.

        At the link above, Robin asks the question, If that’s why we have tort, then why don’t we have a mechanism to settle post hoc how much you should pay me for benefiting you? If tort is a post hoc market for harms, why don’t we have a post hoc market for benefits? One possible explanation is that we’re much more interested in discouraging harms than in encouraging benefits. But Robin makes the case at the link that we have far more to gain from encouraging benefits than we have to gain from discouraging harms.

      • Tyrrell McAllister

        But Robin makes the case at the link that we have far more to gain from encouraging benefits than we have to gain from discouraging harms.

        Oops. Scratch the “far” above. He just says that we have “arguably” more to gain from encouraging benefits.

      • Constant

        One justification for tort is that it works as a sort of post hoc market for harms.

        This may not, however, be the real reason for it, and in fact seems to have nothing to do with the vast majority of actual tort actions familiar to me. It is not difficult to come up with alternative justifications. For one, tort is often a product of genuine disagreement, with one side being genuinely mistaken about what was within his rights. If every loser of a tort action were (say) executed, this would create a world in which only lawyers were truly safe, a world in which Kafka’s nightmares would seem heavenly in comparison. For another, and this applies even to those torts in which the loser knew perfectly well he was in the wrong, escalation – characteristic of infamous family feuds, and of war – is generally a thing not to be desired.

        We can consider the following as a test of the theory that tort primarily functions to reduce transaction costs. Suppose the offender has taken something belonging to the victim but has not yet consumed that thing, and can perfectly well simply give it back if he is so ordered by the court, leaving the victim whole and unharmed and leaving the offender no worse off than he was before the offense. If the court nevertheless grants the offender the right to keep the object in exchange for a payment to be decided by the court, then this is evidence that the court’s purpose is to reduce transaction costs. This is, of course, what happens in eminent domain. However, it seems that if tort were generally like eminent domain, there would be as much or more controversy over tort as there is over eminent domain. And yet I do not notice any such controversy. This suggests to me that the explanation of tort as a means to reduce transaction costs is in fact wrong.

        For example, maybe you would have agreed to let me pollute your land for a certain fee, but this contract is difficult to arrange in advance. So, instead, we use tort to settle the details of the exchange after the fact.

        In the actual examples familiar to me I don’t see tort being used to facilitate transactions with high transaction costs. There may be some cases where this happens to occur, but this may well be a positive side-effect of an institution which does not on the whole exist to serve that purpose.

      • anon

        If the court nevertheless grants the offender the right to keep the object in exchange for a payment to be decided by the court, then this is evidence that the court’s purpose is to reduce transaction costs.

        Torts are different from crimes. The reason theft is a crime rather than a tort is that (1) nothing stops you from “playing by the rules” and bargaining with the owner for the object: transaction costs are low. (2) a court cannot be expected to determine with any certainty how much value the owner places on his object. In this circumstance, imposing a stiff punishment on the offender makes a lot of sense.

        This is clearly explained in David Friedman’s law&econ book (linked from Robin’s syllabus).

      • Constant

        David Friedman writes, “Crimes are prosecuted publicly, torts privately.” David Friedman is an anarcho-capitalist. Anarcho-capitalists argue that all prosecution should be private. It seems to follow that David Friedman would be inclined to argue for a fully-tort legal system. He does of course carefully consider many arguments on both sides in his book Law’s Order.

    • ShardPhoenix

      Also, when I said it “seems nuts” I was being a little lazy – I don’t just mean it’s strange or weird (I’m not one of those people who rejects ideas for that reason), I mean it seems like making this a general rule would allow for all sorts of negative consequences, like people running around firing off half-assed unsolicited advice to everyone they can find in the hopes that someone will incidentally make money from it and be suable.

    • Violet

      And the culture of suing for everything is silly. Much of the US tort law between private persons seems silly from the outside (but we may see a biased view).

      So hypothetically should the responsibility go both ways?
      * If you tell the spouse and it results in good fortune you are entitled to a part of it
      * If you tell the spouse and they become depressed they can sue you for damages?

  • It might be a fun excercise for you to take the California bar exam in July, and then take a comprehensive looks at bias and irrationality in the US and anglosphere-common (and California) law.

  • retired phlebotomist

    if this is allowed, I hope the law will likewise be amended to allow A to approach C (and/or D) and offer to not tell for a fee.

  • Bill

    Tort law is premised on a right that has been breached. It is a creature of law. There is no tort of the type you mentioned, not negligence, not intentional, not any. If you can point to something in Prosser on Torts, please do, its been 38 years since I took my torts class, and maybe I forgot. Or, you can point me to some learned treatise.

    The closest I could see would be section 45 or section 90 of the Restatement of Contracts, but, for the reasons stated above, they would not apply. I don’t see this as tort.

  • Bill

    Robin, I looked at your syllabus for the course, and see you use Cooter. If you could cite any pages in Cooter that would support the argument that this is a tort, that would help.

  • Brian Macker


    My advice is that your brain is undersized. I’ll be suing you for $80 for the service of informing you.

  • brazil84

    Let’s make it simpler:

    Suppose somebody send you unsolicited merchandise. If you do not return it, should they be able to sue you for the value of the merchandise?

    Most jurisdictions have enacted specific statutes allowing the recipient to keep such merchandise as an unconditional gift.

    The wisdom behind these statutes is pretty obvious and I think it applies to the cheating example with at least as much force.

  • MPS

    If A can sue B for informing B that C cheated on B, can after that fact C sue A for informing B that C cheated, or for not first presenting an offer to C *not* to inform B of cheating?

    I fall into the category of your readers who don’t get it. I understand that A might find it difficult to enter contract with B to inform B of such information, without giving it away at first. As far as I’m concerned that’s a business problem for A. A is not legally entitled to be able to engage in this sort of business profitably.

    • Hal Finney

      I wondered the same thing myself: If I am cheating on my girlfriend, and someone tells her so she dumps me, can I sue the tattletale for damages? Or similarly for other relationships, if someone tells my boss something about me that gets me fired, can I sue that person?

      I know tort law is very old and no doubt has a large number of cases and principles that govern which harms can be brought as legal suits and which can’t. I’ve never heard of suing for a broken relationship so there’s probably some rule against it. Suing for getting fired seems more plausible since I learned when I was a manager to treat such situations very carefully and by the book, to avoid lawsuits.

      • Psychohistorian

        If what he told your boss was untrue, you could sue him for defamation. If it’s true, you couldn’t sue him unless you had an explicit contract forbidding disparagement.

  • MPS

    Incidentally, it also seems a difficult suit to win. If I were sued, I would claim I already knew C was cheating. Now how are you going to prove I didn’t?

  • Bill, I didn’t say this was currently covered under tort law; I know I’m proposing something new. I’m saying that the rationale for this is like the rational for current torts, that because the contract is hard to make we try to guess what the agreeable contract would be and enforce that.

    Brazil, again I’m not proposing that we equally accept all possible claims of benefiting others. As with other torts we have other considerations we use to decide which possible torts to enforce. For unsolicited merchandize it is hard to see why an explicit contract would have been difficult, and it is hard to believe random people value it at more than its cost.

    MPS, if you couldn’t show written documentation that you knew, why should we believe you?

    • Doug S.

      There is a great deal of “illegal” behavior, such as polluting or causing accidents, which our law doesn’t try to fully deter. Instead of assigning a fine or punishment level which is so high that no one would even think of intentionally breaking such laws law, the “victim” is instead awarded “damages” which are intended to be something like the average level of harm suffered in cases of this sort. “Injurers” are then pretty much invited to break these laws as long as they are willing to pay the damages when someone sues them for being “liable”.

      Not really. You’re forgetting about punitive damages, damages assigned specifically to deter bad conduct. In that way, it’s similar to a fine. Does the law allow you to park in a “No Parking zone” day after day as long as you just keep paying your parking tickets?

    • tut

      MPS, if you couldn’t show written documentation that you knew, why should we believe you?

      What would be required for such a writ to be a valid defence? Because if your idea became law here, the first thing I’d do is to write a note saying that my wife is cheating and I am fine with it, and then write one for her saying that I am cheating and she is fine with it, just so that we’d be defended against assholes like your A.

      Tort law is already way too easy to abuse by pretending that something that somebody did “harmed you” and suing them for the world. It would get ten times worse if you could set up a situation that you could sue for just by giving somebody a document.

  • Bill

    Thanks for the clarification that it is not covered by tort law, and that this would be a proposal to have it be covered, or to consider it to be covered.

    Then the next step is to ask what are the policy consequences, one way or the other, so that you would decide whether it should be covered.

  • Greg Conen

    For a start, consider the questions separately.
    1) Should people be allowed to sue for providing a benefit?
    As a clearer example than the cheating wife, consider someone informing you that your employee is stealing from you. Should he be allowed to sue you for compensation, and how much?

    2) How much is knowledge that your spouse is cheating worth?
    Frame it as a breach of fiduciary duty, or other existing tort. If you hire a private investigator to investigate your wife, and he discovers that she’s cheating, but doesn’t tell you, what can you sue him for? Or just consider a contract: If you’re composing a prenup which allows anyone to report a cheating spouse on the other for a reward, how much should you offer?

  • Rich Rostrom

    There are two obvious reasons: the subject of an action should be the one who decides whether it is a benefit (or harm); and the subject should be the one who decides whether the action takes place at all.

    The present tort system discourages people from Doing Things to other people without their permission or against their will. Acting upon a person without his consent may be considered a tort even if the intent is benevolent in the eyes of the actor.

    The only exceptions we make to this are when a person is incapable of giving consent; as an unconscious patient. Otherwise, no one can be placed under an obligation without his consent.

    MPS, if you couldn’t show written documentation that you knew, why should we believe you?

    Because the burden of proof should always lie with the claimant?

    • If I claim you smashed your car into my mailbox you might claim the mailbox was already destroyed by some other unknown force in the few hours before your car came there. So must I prove nothing else destroyed it to sue you for smashing my mailbox?

      • Doug S.

        Yes, by a preponderance of the evidence. In this particular case, that’s not very hard to do.

  • Unnamed

    I hope that this becomes law so that I can start a new career sleeping with married women and telling their husbands about it (perhaps with a partner, if the law states that A=/=D).

  • Michael

    You could also implement your suggested institution right now by simply posting a “reward” for the information on your website. Would you be willing to do this? The finder’s fee would also encourage cheating in some relationships. The spouse on his or her way out might as well “cheat” and earn 5% (or some cut of that negotiated with a third party who turns in the information).

    • An individual who chooses to publicly offer such a prize sends a very bad signal to their spouse. That is the signaling penalty I referred to in the post.

      • Michael

        To send a positive signal to the spouse, the reward can cover information on one’s own cheating (or an even higher reward for one’s own cheating).

      • Not clear two bad signals make one good signal.

  • CB

    1. The median household income in the United States is about $46,000. According to your proposal, a person turning in a cheater could expect to collect a fee of 5%, which leads to a median earnings of $2,300. It seems to me that this amount would be readily eaten up in court or lawyer fees, meaning that bringing such a claim to court would seem to be generally unappealing. On the other hand, it would be worthwhile to report the cheating spouses of wealthier individuals (so wealthier people would gain better information about cheaters).

    2. Some people would be severely harmed by the information that they have a cheating spouse, and would prefer not to know. You are asking that on top of this harm, they would then be asked to pay 5% of the their salary for this information that they didn’t want or ask for. Nonetheless, if your proposal led to people, on average, being significantly better off, perhaps one could justify it. If this proposal were put into action, perhaps some method could be devised to asses the degree to which the person receiving the information benefited by it and have the pay vary accordingly.

    3. If we have already made up our minds to involve the law in the issue of cheating, is this really the best approach? For example, it would seem that (all else being equal) preventing cheating to begin with might be more desirable than catching cheaters. That might indicate that cheaters should be the ones to pay when they are caught, rather than those being cheated on. That would surely make them less likely to cheat in the first place than if their spouse were forced to pay. One way that we could think about this is as cheaters paying their spouses for the harm they caused, and the spouses paying the informants. If the amounts paid balanced, then this would have the net effect of the cheater paying the informant.

    4. Given all of the uncertainties involved, it seems hard to be confident that your proposal would really improve the world to a significant degree.

    • $2300 seems enough to credibly threaten to sue to collect; most cases would settle out of court, and many would rather avoid the publicity. If needed, we could raise the 5% figure, or could make the loser pay both sides’ court costs.

  • Tracy W

    This sounds to me a bit like the arguments indigenous people make for being paid for use of their traditional knowledge (eg they know a local plant has good healing properties and a big pharmceutical company uses that local plant to make a successful new drug).

    Of course the people arguing for their system never pay money to the English whenever they use Newtonian physics, nor the French and English whenever they use anything electrical (eg Ampere, Faraday).

  • I have rarely been more glad to be polyamorous.

  • She can always put a bounty on his ass – if she wants to learn about his possible cheating – and is prepared to endure some resulting risk of entrapment. That’s a fairly simple opt-in scheme.

  • baconbacon

    The major problem with this, and all of your posts on this, topic is that you pretty blindly assume that the outcome of disseminating this information is largely positive- for either the individuals involved or society at large. There are multiple scenarios which can be imagined that would/could imply this is not the case

    Scenario 1: By removing/diminishing the threat of cuckolding you may inadvertently increase the bad behavior of spouses. Cheating and cuckolding can be seen as a punishment/threat to a spouse which is severe, but less severe than divorce. By reducing the threats that one party has you would expect to see an increase in poor behavior of the partner that are not negative enough to lead to divorce. Minor to moderate verbal abuse, excess drinking ect. The expense of divorce prohibits is use to threaten/resolve smaller disputes (while also being a strong signal to an individual’s commitment to the marriage).

    Scenario 2: Cuckolding (the potential to cuckold) may be beneficial to both parties. If a woman can cuckold a man she may be willing to take more risk when it comes to marriage. She can marry while the man’s prospects are uncertain if they plan on having children later- if he shows that the entry level job he took has been a springboard and he now manages the branch where he started as a teller that is a much stronger signal about his genes than his SAT scores or his grades in college. Providing an out whereby she can combine her genes with those of more successful men allows her to take this risk. This is good for both the man who succeeds (he gets the support of his wife while he works his way up) the woman (has more options available) only to the detriment of those whose younger signals don’t match their older ones.

    Scenario 3: Cuckolding can reveal otherwise unseen genes. Is your spouse going to be a great father or not? A woman can answer this best only after she sees her man act as a father (which is different from most actions as a brother, uncle, babysitter ect). She can take advantage of this in several ways. She can cuckold her first child and if her husbands behavior in that situation is acceptable she can then bear his children from there out, or she can bear his child first and if his actions are of low acceptability (but acceptable enough not to warrant a divorce) she can cuckold in the future.

    • magfrump

      I’m not entirely prepared to work out exactly what it is, but I feel there’s something wrong in the idea of a woman cuckolding her first child to see if her husband will be a good father.

      First: who would you cuckold with? You need to test them as a father first.

      Second: you use cuckolding as a penalty or escape mechanism earlier; why punish someone when they haven’t done anything?

      This seems like advocating cuckoldry-for-no-reason.

      • baconbacon

        I’m not entirely prepared to work out exactly what it is, but I feel there’s something wrong in the idea of a woman cuckolding her first child to see if her husband will be a good father.

        Robin made it pretty clear he didn’t care about morality over efficiency in a recent post. As this is a reply to Robin your personal feelings aren’t very relevant.

        First: who would you cuckold with? You need to test them as a father first.

        No you don’t. When you cuckold you are tricking A into raising B’s child. The advantages to the woman are in grabbing “better” genes. She can offer the man a chance to pass on his genes without the cost of raising the child, good deal for her and him and bad for her husband (it gets even better for the woman- she can cuckold with an older man who has demonstrated a lifetime of earnings and raising other children but who may now be physically unable to raise children)

        Second: you use cuckolding as a penalty or escape mechanism earlier; why punish someone when they haven’t done anything?

        These are simply plausible scenarios that describe the social benefits of infidelity to women that Robin simply ignores.

  • Although the specific situation and reasoning Robin gives make some sense, it’s less clear how a more general system of Negative Liability would be developed.

    I prefer a legal system that encoura g my property. And I wouldn’t like a system that rewards people for doing me unsolicited benefits. In particular:
    * I think the risk is too great that I would disagree with the value of the benefits offered, and
    * I think there are significant costs of having people snooping around my personal life hoping to gain these benefits

    The reason not to do this is because there are so many ways people can provide benefits
    By discouraging people from harming each other and discouraging people from providing unsolicited benefits , we get a society where people leave each other alone more.

    (with a tort system that forces people to pay for harming each other)
    (by not having a Hanson-style system of “Negative Liability”)

    In typical torts, the harmed party had no choice to be involved in the harm, and the harmer made some choice that caused it.

    This is a bad idea because it harms our freedom. I should be free to enjoy my property. If someone else, acting freely, harms me or my property without my involvement or consent, tort law permits a mechanism for settlement.

    On the other hand, in the cases I can think of, these “Negative Liability” situations involve someone else, acting freely, benefiting me without my involvement or consent, and then being able to compel me to pay them. In these cases, the law would acting to reduce my freedom, specifically freedom to contract for only the benefits I prefer.

    It seems like a principle underlying the assymetric construction of tort law is that, in a state of nature, we are all free, have separate concerns and property

    • David J

      Sorry folks, my post-in-progress was edited by my two year old daughter. If someone could go back in time and stop her from editing my post, I would happily consent to a fee.

  • Daniel Burfoot

    I think the people who claim “many spouses would rather not know about cheating” are making a very strange claim. I don’t know about women, but I can’t imagine more than 1% of men would have this preference. Anyway, this is an empirical question, why not just do a poll?

    • Psychohistorian

      It depends on how you define “would rather not know.” If you had two identical persons, Bob and Bob’, and you tell Bob at T=0 that his wife is cheating, but you don’t tell Bob’, Bob’ will probably be happier at T=1. He may even be happier at T=5, 10, and 100. But if you ask Bob at any time, he’ll say he’s glad he knew.

  • lemmy caution

    I have heard of laws allowing for suits for 50% of costs on fence repairs and the like. The key there is that the laws back up existing informal standards. There is a sense that the neighbor “should” pay 50% on the fence repair therefore it isn’t such a big deal that the government forces the neighbor to pay 50%.

    If A informs B that spouse C is cheating on B with D, should A be able to sue B for compensation for this service?

    Nobody is happy to hear bad news. Usually in the situation given above, B gets mad at A. There is certainly no informal standard that B pay A anything. This means that even if such a law was efficient it would piss people off.

  • axg

    I’ll begin stating a premise I doubt you accept, but which seems unquestionable to me and, I’m sure, to many: As a _direct_ remedy, legal action is almost always a deeply awful way to handle most questions of economic allocation. It’s horrendously expensive, slow, and capricious. It often have major negative externalities (in your hypothetical, who gains when there is a suit and the B&C’s dirty laundy is aired so much more publically?) To conceptualize some element of tort law as merely some pre-negotiated transaction and treating the legal (transaction) costs as a secondary matter is (again, IMO) really bizarre and other-wordly. Even when a matter doesn’t get to court (e.g. is settled), when individual people are forced to “negotiate” with each other through lawyers and ligitation threats (and, as per a comment you with respect to your example, blackmail – aka “avoiding publicity”) we are economically and socially the poorer for it.

    But if you permit me my premise for a moment, there is now critical asymmetry between liability and negative liability: In the former, the person taking action is not the one being sued or threatening so. And so, we may have the beneficial side effect that many actors will reconsider their action and either stop before a harm is done, or where feasible embark on a “normal” process of negotation with the other parties. In those cases where the lawyers end up being involved, it’s probably going to be bad all around (according to people who see the world as I do, of course!), but perhaps there are vastly many more cases where the mere possiblility changed behavior.

    But with negative liability, the actor is _also_ the one initiating or threatening legal action. There’s no point doing the act without following through without a lawyer or a credible threat thereof at one’s side. There is no collateral benefit, in the sense that nothing is encouraged or deterred without as a necessary component involving the legal system. If you believe this involvement is largely costless, I grant you your symmetry – but many people the opposite and our belief has a lot of support in the real-world facts.

  • Hal Finney

    One point which seems to be unsaid here is that the lure to allowing this kind of thing is that both parties benefit, and arguably without such lawsuits the benefit often will not happen. So there is a prima facie case to allow it as it leads to Pareto improvements.

    It still seems that it would not overly burden things to require a step where A tells B that he has some useful information and will provide it if B agrees to rebate 50% of its value. Then there would arise in time a set of legal precedents and conventions such as Robin describes, in terms of what different sorts of life changes are worth. Given a background of such precedents, I would imagine that most people would gladly agree to such an offer, and be happy that the law allowed such transactions.

    • Violet

      You can already do this, it doesn’t require a new law.

      A: I have this information that will benefit you, I will tell you if you give me 50% of the benefits.
      B: ok, lets sign a contract
      A and B sign a contract

      Now it is a simple matter of contract violation if A doesn’t pay and covered by the present legal system.

      Of course A can also say “no, thanks” to the contract proposal and preserving this possibility is important.

  • Andrew Gorman

    Today tort law lets folks sue others for harms outside the scope of a contract.”

    Why the use of “today”? Tort law (in the anglo-american legal tradition at least) has been around for centuries, largely unchanged. Is this an unconscious dig at the trial bar? Or a misunderstanding of the relationship between tort law and contract law (though occasionally overlapping, doctrinally very different)? Just curious . . .

    • “Today” is in contrast to the future, where it might also let one sue for benefits, in addition to harms.

  • The book “Lust in Translation”, a cross-national anthropology of adultery, says Americans are unusual in wanting to know about adultery.  In most countries, the author found that people’s emotional reactions to adultery (heartbreak) were basically the same, but their understanding of the best way to handle the situation greatly varied.  Americans were the only ones with a culture of exposing and talking through adultery rather than keeping silent at all costs, even if everyone knew what was going on.

    • Robin Hanson