In 2017, I read a WSJ review of Rebooting Justice by Barton & Bibas: When it comes to securing justice in an efficient and affordable fashion, lawyers can in fact be the primary obstacle. … Even basic legal services at small or mid-size firms may cost more than $200 an hour, placing meaningful legal representation beyond the reach of many Americans. … Why … costs of legal education and guildlike restrictions on entry to the profession … increasing complexity of legal processes, … choosing to represent oneself is … on the rise … [but puts one] at a severe disadvantage. … There’s no reason that paralegals, notaries, social workers and others with relevant training could not [help]. … inexpensive, downloadable forms to cover basic legal matters, like living wills or articles of incorporation. … computer-assisted mediation … Their more radical suggestion is to restructure the system so that many processes are specifically designed to omit lawyers. … The biggest obstacle to such reforms could well come from the legal profession itself.
I think the use of US/UK choice of law provisions has more to do with the institutional expertise of the US/UK legal profession in areas like finance, familiarity with those systems by the players in these markets and other related benefits not an intrinsic superiority of the way the law is run.
I see that I previously didn't give the link with more details; I've added it now. Key quote: "Clients and insurers could make trades between preventing crime via monitoring and limiting client actions before a crime, or preventing crime via fear of punishment and loss after a crime. They might agree on (and arrange to pay for) specific amounts and types of punishment, such as fines, prison, torture, exile, or even death, in the event the client were found guilty of particular crimes"
I followed the link to the previous post you had about this and read the comments as well as the links to the book reviews but couldn't find any good explanation as to how one avoids the moral hazard problem especially with respect to individuals who hit the bound of being unable to pay for insurance.
The point about pre-crime style punishment wasn't a general objection to risk based premium but a poor attempt to convey the dual problems that
1) Utility is sublinear in money and this would almost certainly impose far greater costs on the poor than on the non-poor and hence a substantial net decrease in overall utility.
2) Absent some kind of severe non-monetary punishment it's unclear how you avoid a system breakdown for people who can't afford insurance. If you give them insurance anyway (subsidized) the moral hazard problem is redoubled. If not many of the benefits disappear.
Common law systems pass the market test. US and UK law, and their derivatives, are opted into by contracting parties the world over. No country with an inquisitorial legal system has anything like the same popularity. Doesn't this create a heavy presumption that it's superior, at least in civil litigation?
When crimes are punished by fines paid by insurance firms, those firms will pony up for lawyers to defend the accused. Producing effective counsel on average.
Public defenders are notoriously overworked and underpaid, which is frequently viewed as depriving citizens of _effective_ counsel.
I wonder if a system of criminal legal insurance would do a better job of compensating defense attorneys, and thereby lead to more effective counsel on average.
A more obvious reason for a less inquisitorial is it requires more judges and more public funding of them, instead of more lawyers privately funded. It is a product of market worship.
My guess is because plea bargaining effectively reduces the system to direct negotiation between two lawyers. This report says that 90-95% of cases are resolved with plea bargaining: https://www.bja.gov/Publica...
Which is to say, a handshake deal between two members of the same professional guild is what decides almost all cases.
How does the "one remarkable aspect..." quote relate to the book's main thesis? (I'm guessing the author believes that heavy regulation by design makes lawyers more essential to the process, but wonder whether there's something more; I also wonder why they highlight that the plea bargaining phase is *not* heavily regulated)
If you follow the link you'll see a lot more about how liability insurance can avoid moral hazard, including intensional acts. I don't see the "societal interest" in avoiding risk based premiums.
I'm not so sure a rigid unforgiving system is best even for big cases, but yes the most likely scenario to approve such a change is to have it limited to smaller cases.
As far as legal liability insurance goes I fail to see how this doesn't create a really really huge moral hazard or force us to abandon the use of statutory damages (which are essential to compensating victims and detering violations especially in cases where we have a societal interest in not having juries compare individualized harms)
To be useful such liability insurance must, unlike fire, theft, or accident, also cover intentional actions. In this case how can you avoid huge premiums out of the concern that people will conspire to commit such torts (libel per se someone or violate their copyright)?
Also, I think we probably have a societal interest in avoiding a kind of pre-crime style punishment based on predicted likelihood of being successfully sued for a tort since one would expect those costs to be very high for the poor.
I suspect that the US system actually works pretty well and with reasonable efficiency for large corporations (and government agency enforcement actions against them) who I believe are probably, by billable hour, huge fraction of civil billable hours. These billion dollar cases are surely speed along by having a very rigid system with unforgiving deadlines, pleading standards need for timely and preserved objections. However, a system which allows normal people to interact with it without the expectation they employ a lawyer needs to be more forgiving, e.g., failing to appreciate the counter-intuitive precedents in libel law shouldn't expose you to a 400k Anti-SLAPP legal fee judgement without warning.
As such perhaps the idea system would be to extend the idea of small claims courts with different rules to substantially more cases of the kind that affect normal individuals while keeping a different and less forgiving system with rules optimized for the big cases
I think the use of US/UK choice of law provisions has more to do with the institutional expertise of the US/UK legal profession in areas like finance, familiarity with those systems by the players in these markets and other related benefits not an intrinsic superiority of the way the law is run.
I see that I previously didn't give the link with more details; I've added it now. Key quote: "Clients and insurers could make trades between preventing crime via monitoring and limiting client actions before a crime, or preventing crime via fear of punishment and loss after a crime. They might agree on (and arrange to pay for) specific amounts and types of punishment, such as fines, prison, torture, exile, or even death, in the event the client were found guilty of particular crimes"
I followed the link to the previous post you had about this and read the comments as well as the links to the book reviews but couldn't find any good explanation as to how one avoids the moral hazard problem especially with respect to individuals who hit the bound of being unable to pay for insurance.
The point about pre-crime style punishment wasn't a general objection to risk based premium but a poor attempt to convey the dual problems that
1) Utility is sublinear in money and this would almost certainly impose far greater costs on the poor than on the non-poor and hence a substantial net decrease in overall utility.
2) Absent some kind of severe non-monetary punishment it's unclear how you avoid a system breakdown for people who can't afford insurance. If you give them insurance anyway (subsidized) the moral hazard problem is redoubled. If not many of the benefits disappear.
Huh? Not only do most nations choose inquisitorial systems, so do most private organizations when they create conflict resolution systems.
Common law systems pass the market test. US and UK law, and their derivatives, are opted into by contracting parties the world over. No country with an inquisitorial legal system has anything like the same popularity. Doesn't this create a heavy presumption that it's superior, at least in civil litigation?
Thanks, I like your guess better.
When crimes are punished by fines paid by insurance firms, those firms will pony up for lawyers to defend the accused. Producing effective counsel on average.
Public defenders are notoriously overworked and underpaid, which is frequently viewed as depriving citizens of _effective_ counsel.
I wonder if a system of criminal legal insurance would do a better job of compensating defense attorneys, and thereby lead to more effective counsel on average.
A more obvious reason for a less inquisitorial is it requires more judges and more public funding of them, instead of more lawyers privately funded. It is a product of market worship.
My guess is because plea bargaining effectively reduces the system to direct negotiation between two lawyers. This report says that 90-95% of cases are resolved with plea bargaining: https://www.bja.gov/Publica...
Which is to say, a handshake deal between two members of the same professional guild is what decides almost all cases.
How does the "one remarkable aspect..." quote relate to the book's main thesis? (I'm guessing the author believes that heavy regulation by design makes lawyers more essential to the process, but wonder whether there's something more; I also wonder why they highlight that the plea bargaining phase is *not* heavily regulated)
If you follow the link you'll see a lot more about how liability insurance can avoid moral hazard, including intensional acts. I don't see the "societal interest" in avoiding risk based premiums.
I'm not so sure a rigid unforgiving system is best even for big cases, but yes the most likely scenario to approve such a change is to have it limited to smaller cases.
As far as legal liability insurance goes I fail to see how this doesn't create a really really huge moral hazard or force us to abandon the use of statutory damages (which are essential to compensating victims and detering violations especially in cases where we have a societal interest in not having juries compare individualized harms)
To be useful such liability insurance must, unlike fire, theft, or accident, also cover intentional actions. In this case how can you avoid huge premiums out of the concern that people will conspire to commit such torts (libel per se someone or violate their copyright)?
Also, I think we probably have a societal interest in avoiding a kind of pre-crime style punishment based on predicted likelihood of being successfully sued for a tort since one would expect those costs to be very high for the poor.
I suspect that the US system actually works pretty well and with reasonable efficiency for large corporations (and government agency enforcement actions against them) who I believe are probably, by billable hour, huge fraction of civil billable hours. These billion dollar cases are surely speed along by having a very rigid system with unforgiving deadlines, pleading standards need for timely and preserved objections. However, a system which allows normal people to interact with it without the expectation they employ a lawyer needs to be more forgiving, e.g., failing to appreciate the counter-intuitive precedents in libel law shouldn't expose you to a 400k Anti-SLAPP legal fee judgement without warning.
As such perhaps the idea system would be to extend the idea of small claims courts with different rules to substantially more cases of the kind that affect normal individuals while keeping a different and less forgiving system with rules optimized for the big cases