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.
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.
"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 . . .
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.
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).
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.
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.
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 contractA and B sign a contractetc
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.
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.
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.
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.
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.
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.
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.
Interesting!
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.
"Today" is in contrast to the future, where it might also let one sue for benefits, in addition to harms.
"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 . . .
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.
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).
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.
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.
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 contractA and B sign a contractetc
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.
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.
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.
The rich have better lawyers and make better targets, so this bias actually has counterbalances.
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.
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.
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.
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.