Action movies often show fights in complex environments like factories, ships, kitchens, warehouses, or construction sites. In such cases, whomever knows more details of that environment can have big advantages in the fight. However, when people instead try to arrange a “fair fight”, they usually choose simple environments that combatants can know similarly well, like an empty flat walled square or circle.
How does the prediction market work? When does the market close and when is rhe punishment handed out - when the jury retires to decide or just prior to anouncing the verdict? So the defendant knows their punishment during the jury deliiberations. The jury knows their decision doesn't matter for the court case, but only for the market pay out.
Many of these markets will be pretty small in volume. Probably not hard to move the market in the last minute.
I'd suggest that much of the complexity in US law is exactly to limit the influence of juries. As time on twitter quickly illustrates just finding out what random people think tend to just tell us what the juror's prejudices or desires to signal happen to be.
Yes, early in our history the simple jury system worked well but that was because jurors were judging disputes in their own communities. Once jurors are deciding cases between major companies or lawsuits against the government they're likely to just rule based on who strikes them as a dick.
Indeed, consider all the various system's for crime insurance or various contracts you've suggested over the years. Virtually every one of them is something that strikes the average citizen as horrible or objectionable in some way. Without the extra legal complexity which prevents jurors from exercising unlimited discretion you'd constantly find the rules we'd like to create to incentivize innovation or other behaviors getting overturned because it makes the jurors feel bad.
The common people would be slow to appreciate novel technology. But I was also thinking about big changes in social attitudes: towards slavery, women's rights, gay rights, etc. If a woman in, say, 1910, sued for the right to vote, how would a jury decide? Even in a very feminist district, they should probably find against her on grounds of established social custom. Then the same would be true indefinitely into the future.
Since the common-law structure that you recommend would be very slow to accommodate social or technological changes which called for changes in the law, I presume you would want to retain legislatures, to provide such changes. If so, it would be hard to restrain the legislatures from passing unnecessary, undesirable statutes, complicating the law excessively—indeed, giving us the system we have now. But to dispense altogether with legislatures would be unacceptable to progressives, and most people are at least rather progressive. So I think a return to common law, like a return to a monetary gold standard and other reactionary--though perhaps desirable--reforms, is politically impracticable.
If you're picking juries from within the industry of the participants, then you will see that divergence between industries. The market approach may help (I am reserving judgment on all prediction markets for the nonce).
It isn't obvious to me that jury based law would diverge in that way. Seems to me to depend on how you pick the juries. Juries selected from a large group would tend to have decisions consistent across that large group. Esp. if one used the market approach described in my added to the post.
I feel like you could stand to delve into all the variants of Alternative Dispute Resolution that people are using these days. For example, much commercial litigation is resolved by the two parties hiring an arbitrator, as are 90% of union-employer disputes. This functions essentially the same way as you are envisioning a jury working, since the arbitrators tend to be experts in their area, and because the arbitrators are being selected from a common pool, the parties have a fair bit of predictability.
In practice, the current commercial arbitration system has become nearly as vexed as law, but in fixable ways.
In order to understand the consequences of this behavior, though, it's important to understand why all that complexity happens in the first place. It's gap-filling. Human behavior in the aggregate is incredibly complex, and the law exists (as you say) to create shared expectations of what certain behaviors will entail. However, the primary means we have of doing that is by setting it down in written language. But because words aren't sufficient to capture the complexity of human behavior, a clever lawyer can engineer a situation that falls in a gray area of language and then hope that her skills at advocacy can win the day.
In toto: as long as law uses language to reference whether a certain behavior is or is not permissible, it will grow in complexity.
Replacing that system with one more norm-based than language-based, as an arbitration- or jury-based system would do, would make predictability rather harder, since norms are highly context-sensitive. But what's worse is that you eventually would have bodies of law from different industries that might diverge greatly: what are the transaction costs of moving between them in that instance? Does that force additional specialization? Or balkanization? How is predictability supposed to exist where the law as applied to one's job is very different from the law surrounding one's home?
I would say there are three things we would like from legal systems: high consistency, high flexibility/fairness, and low complexity.
To exemplify the failures:
Low consistency means rulings change too much with different jury and judge.
Low flexibility/fairness means very simple static rules, e.g. all thefts punished with 5 years of prison independently of amount or circumstances.
High complexity is the problem you are mostly writing about in this post, with huge amount of resources spent on navigating the legal system and different outcomes for those who can and those who cannot invest sufficiently in legal expertise.
There is clearly a tradeoff between the three. I agree that right now we sacrificed the third too much to improve the first two.
This may be due to the fact that many single changes can be clearly connected to improved consistency or fairness in specific cases, while the increase in complexity is gradual and uniform. Improving along this dimension probably requires a complete reset which is difficult to do under our institutional arrangement. But it may be needed.
12 person juries and a principals based system are probably higher vol, but they do allow more new things / are less restrictive. They’re also much more predictable for the median person.
The current, complex system is actually more predictable, it’s just that modeling it is expensive. The median person will be worse at predicting legal outcomes, but the upper percentiles will be much better.
How does the prediction market work? When does the market close and when is rhe punishment handed out - when the jury retires to decide or just prior to anouncing the verdict? So the defendant knows their punishment during the jury deliiberations. The jury knows their decision doesn't matter for the court case, but only for the market pay out.
Many of these markets will be pretty small in volume. Probably not hard to move the market in the last minute.
I'd suggest that much of the complexity in US law is exactly to limit the influence of juries. As time on twitter quickly illustrates just finding out what random people think tend to just tell us what the juror's prejudices or desires to signal happen to be.
Yes, early in our history the simple jury system worked well but that was because jurors were judging disputes in their own communities. Once jurors are deciding cases between major companies or lawsuits against the government they're likely to just rule based on who strikes them as a dick.
Indeed, consider all the various system's for crime insurance or various contracts you've suggested over the years. Virtually every one of them is something that strikes the average citizen as horrible or objectionable in some way. Without the extra legal complexity which prevents jurors from exercising unlimited discretion you'd constantly find the rules we'd like to create to incentivize innovation or other behaviors getting overturned because it makes the jurors feel bad.
The common people would be slow to appreciate novel technology. But I was also thinking about big changes in social attitudes: towards slavery, women's rights, gay rights, etc. If a woman in, say, 1910, sued for the right to vote, how would a jury decide? Even in a very feminist district, they should probably find against her on grounds of established social custom. Then the same would be true indefinitely into the future.
I don't see why juries couldn't adapt quickly to changing tech.
Since the common-law structure that you recommend would be very slow to accommodate social or technological changes which called for changes in the law, I presume you would want to retain legislatures, to provide such changes. If so, it would be hard to restrain the legislatures from passing unnecessary, undesirable statutes, complicating the law excessively—indeed, giving us the system we have now. But to dispense altogether with legislatures would be unacceptable to progressives, and most people are at least rather progressive. So I think a return to common law, like a return to a monetary gold standard and other reactionary--though perhaps desirable--reforms, is politically impracticable.
If you're picking juries from within the industry of the participants, then you will see that divergence between industries. The market approach may help (I am reserving judgment on all prediction markets for the nonce).
It isn't obvious to me that jury based law would diverge in that way. Seems to me to depend on how you pick the juries. Juries selected from a large group would tend to have decisions consistent across that large group. Esp. if one used the market approach described in my added to the post.
I feel like you could stand to delve into all the variants of Alternative Dispute Resolution that people are using these days. For example, much commercial litigation is resolved by the two parties hiring an arbitrator, as are 90% of union-employer disputes. This functions essentially the same way as you are envisioning a jury working, since the arbitrators tend to be experts in their area, and because the arbitrators are being selected from a common pool, the parties have a fair bit of predictability.
In practice, the current commercial arbitration system has become nearly as vexed as law, but in fixable ways.
In order to understand the consequences of this behavior, though, it's important to understand why all that complexity happens in the first place. It's gap-filling. Human behavior in the aggregate is incredibly complex, and the law exists (as you say) to create shared expectations of what certain behaviors will entail. However, the primary means we have of doing that is by setting it down in written language. But because words aren't sufficient to capture the complexity of human behavior, a clever lawyer can engineer a situation that falls in a gray area of language and then hope that her skills at advocacy can win the day.
In toto: as long as law uses language to reference whether a certain behavior is or is not permissible, it will grow in complexity.
Replacing that system with one more norm-based than language-based, as an arbitration- or jury-based system would do, would make predictability rather harder, since norms are highly context-sensitive. But what's worse is that you eventually would have bodies of law from different industries that might diverge greatly: what are the transaction costs of moving between them in that instance? Does that force additional specialization? Or balkanization? How is predictability supposed to exist where the law as applied to one's job is very different from the law surrounding one's home?
I would say there are three things we would like from legal systems: high consistency, high flexibility/fairness, and low complexity.
To exemplify the failures:
Low consistency means rulings change too much with different jury and judge.
Low flexibility/fairness means very simple static rules, e.g. all thefts punished with 5 years of prison independently of amount or circumstances.
High complexity is the problem you are mostly writing about in this post, with huge amount of resources spent on navigating the legal system and different outcomes for those who can and those who cannot invest sufficiently in legal expertise.
There is clearly a tradeoff between the three. I agree that right now we sacrificed the third too much to improve the first two.
This may be due to the fact that many single changes can be clearly connected to improved consistency or fairness in specific cases, while the increase in complexity is gradual and uniform. Improving along this dimension probably requires a complete reset which is difficult to do under our institutional arrangement. But it may be needed.
There are ways to reduce volatility. Such as rule based on market prediction of jury rulings, instead of those rulings directly.
How do you price volatility of legal outcomes?
12 person juries and a principals based system are probably higher vol, but they do allow more new things / are less restrictive. They’re also much more predictable for the median person.
The current, complex system is actually more predictable, it’s just that modeling it is expensive. The median person will be worse at predicting legal outcomes, but the upper percentiles will be much better.