Dyke penalty example (why penalize ex post and not inspect ex ante)
Defendant may be unable to compensate ex post
Small loses shared by lots of people
Agency can develop specific care standard (expertise)
Can take into account third party arms
Cost of inspection (have to check all dykes), and administrative costs
Speeding tickets and crash liability
Capture some of both
Eye for an Eye – Sometimes a specific remedy can lead to an efficient result by allowing the parties to bargain for the appropriate compromise as opposed to having the court establish a baseline. Penalty v. Reward
Depends on baseline situation (worse=penalty, better=reward)
Legal regimes tend to rely on penalties more than rewards
Israeli daycare problem: implicitly approving bad activity if willing to pay
Loss aversion (people are more afraid of punishment), (thayler reading)
Bottom line – Look at how much plaintiff needs to be paid to be brought up to baseline without windfall (doctrine is fine, evidence is important
Trinity Church v. Hancock
During construction of John Hancock building, damages is done to Trinity Church that will reduce the Church’s lifespan however the church is still functional (25% of lifespan lost)
Can church be awarded damages for a fraction of its lifespan?
Replacement costs – impossible given historic value (not a church in the suburbs)
Reconstruction Costs – How could you actually reconstruct it the same?
Market value is basically nil (what about subjective value)
Value doesn’t have to be objective, just has to be believable subjective (special use)
How can Trinity true subjective value show value?
IE pick a middle figure and hope for the best (obvious error one way or the other, why not compromise)
Not a thing court’s like to do (blue bus problem)
Creative solution–Force Trinity to rebuild, have Hancock repay Trinity. This would encourage bargaining (neither party wants to rebuild)
When should the church receive damages?
Majority views harm as already having occurred (structural damage): broken now recover now
Dissent: harm is collapse (harm has not yet materialized)
Farmer leases farmland to mining company with covenant to restore land, cost of restoration is much greater than the difference in market value, company breaches, market value awarded. Why not issue specific performance and let them figure it out?
Property Tax Assessment – Looking for subjective value
Self assess system (Australia and Wisconsin)
Ask people to give subjective value, anyone can buy at that price
Compare to claiming races for horses ($20,000 means any horse can be bought for that)
Admiralty–general average contribution (owners self assess value of cargo and compensate pro rata for any cargo that must be portaged)
Why only pay when harm is done, not every time you act negligent?
Compensation? (people who get hurt only get a small fraction) – insurance could handle
Huge administrative problem despite no good philosophical justification
Children dying on boats hypo(causation problem) (normally just a recurring miss)
Every year 10 children die from falling off of the ferry–life preservers, if added, would save 40% of the time.
Why not compensate each plaintiff 40%? Wouldn’t this avoid the compensation problem
Overcompensates the one’s who wouldn’t be saved, undercompensates the saved (maybe we don’t like being certain that we are wrong)
Litigation costs (10 trials instead of 3)
This wouldn’t be a problem if the boat got some danged life preservers
Lost-Chance Cases/recurring miss
Ex. medical malpractice decrease chance of death from 60%-75%
Court hold recovery for lost chance (40-25)
Must show >50% chance that D cause loss in chance
Can show injury from drug, but cannot show which D made it
D should not escape liability merely because P cannot show which D injured which P
Alternative Liability (Summers v. Tice)
What if there were more hunters?
Should Tort world move to probabilistic remedies?
Perfect deterrence, matching is off (over/under compensated), administrative costs
All testimony is probabilistic to some extent
Why not allow probabilistic evidence (I.e., 80% of buses are blue, you were hit by bus)
Incentive to get the best possible evidence
Juries won’t understand statistics
Allows us to pretend were 100% certain
Each element is a preponderance (can be less overall)
Congresse Juror Theorem (bays theorem)
If people are >50%, the group is very likely to be right as a whole (better than a single expert)
Linda (bank teller in feminist movement chosen over bank teller despite odds against this choice)
Base rate neglect (Mammogram example)
Measures of damages
Expectation–Position P would have been in if contract was performed
Very good at encouraging efficient breaches
Can encourage overreliance (overinvestment)
Better software v. worse software
Changes when the seller can efficiently breach
Option of investing additional 25 to increase total value from 200 to 230 (from buyers perspective, make the deal)