Author: Sean Williams

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Farewell, with some thoughts on gift giving

January has arrived and so my time as a guest blogger has come to an end.  Thanks so much to Solangel and the other folks here at Concurring Opinions for giving me the opportunity to blog this month.

As I reflect back on December, I am reminded again of “The Deadweight Loss of Christmas” and a recent article from the NY Times describing how people make systematically different decisions when they choose what they would like to receive vs. what they would like to give. They want to receive gift cards but want to give imaginative and unique items. This is within a larger constellation of research on asymmetries between how we make decisions for ourselves and how we make decisions for others. (See here and Chapter 13 of this Handbook for brief summaries). Rather than enter debates about the intangible value of gift giving or gift selection, which each create value even if gifts miss their mark, I just wanted to invite readers to write in about either 1) gifts that missed their mark by an especially wide margin this season or 2) gifts that created much more joy than one could have possibly predicted.

I will leave it to readers’ imaginations to decide which categories these gifts fell into…

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Child Safety, Part III

How might tort law respond, if at all, to the preferences of parents and the general population to invest about twice as much in child safety as adult safety? (see this post for a summary of the data, and this post for a discussion of whether those preferences are normatively defensible).

Here’s my take, which you can read more about here:

Because the studies that I’m drawing from concern the allocation of safety-related resources, they have their most direct implications when we view tort law as (at least partially) a means to make people safer by deterring risky behavior. Those studies create two main implications, one for levels of care and one for damages.

Under a deterrence rationale, the standard of care in tort law reflects what we want potential tortfeasors to invest in accident prevention. The investment patterns from my first post in this series suggest that, at least as a prima facie matter, people want potential tortfeasors to invest twice as many resources in preventing accidents when children are the primary potential victims, even when both children and adults are equally vulnerable.  And if my second post in this series is right, we have reasons to respect those preferences. So when children are among the foreseeable class of victims, courts should require a heightened level of care. Although courts appear to respond to a child’s increased vulnerability to harms—they blindly run out into the street to reach ice cream trucks, for example—I have not found evidence that courts have picked up on the extra value that we appear to place on child safety. I’ve also looked at practitioner treatises, and so far I cannot find any mention that courts or juries are more likely to find a defendant negligent if the victim was a child. So, as a prima facie matter, there are reasons to question whether judges and juries are applying a sufficiently stringent level of care in cases involving children.

To motivate potential tortfeasors to take a heightened level of care for children, damages for child victims should be about twice as high as damages for adult victims. Currently, tort damages tend to exhibit child discounts or mild child premiums. This should not be a surprise. We ask juries to set damages in particular ways that constrain their discretion. For wrongful death, we generally ask them to set damages by looking at the economic contributions that the decedent would have made to her relatives. This puts a very small value on dead children, and results in child discounts even after we add non-economic damages. For permanent injuries, some back-of-the-envelope calculations suggest that juries tend to award children 20-25 percent more than adults. This is approximately what we would expect if juries were awarding damages based on the number of years that a victim will have to live with her injuries, and then discounting those future yearly payouts to arrive at a single lump sum.   But that child premium is significantly lower than the 2 to 1 ratio that a deterrence-oriented tort system might strive for. So, as a prima facie matter, there are reasons to question whether damages for child victims are high enough to generate the amount of deterrence that people appear to desire.

Of course, there is much more to say.

A fuller deterrence analysis would require examining a host of additional factors, such as whether regulatory agencies or market forces or the threat of criminal liability already provide extra protection for children, whether risk compensation or substitution effects operate differently for the adult and child populations, the differences between contractual settings like medical malpractice and stranger cases, how to handle “hidden-child” cases (which would be partially analogous to thin-skull cases), etc. I invite readers to offer their thoughts on these issues. But as a first cut, there are reasons to think that tort law does not offer the desired mix of protection for adults and children.

We could also ask what civil recourse and corrective justice accounts of tort law might contribute to the discussion. But I will leave that for another day.

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Child Safety, Part II

In my last post, I introduced a set of studies that suggest that parents and nonparents alike prefer to invest about twice as much in child safety as adult safety. For purposes of this post, I want to take that descriptive claim as true and ask: What justifies that differential treatment?

One answer is simply that we should respect preferences (almost) regardless of their content. But that seems too quick.

Below are a few thoughts on how we could justify greater protections for children.
I invite readers to add to this preliminary list.

  • Children have more life years ahead of them to live with permanent injury, and lose more life years if they die. This is likely part of the story, but it is an incomplete defense of the data because focusing on life years would not justify providing children with extra protection for temporary injuries like spending one year in the hospital or catching the common cold.
  • Perhaps everyone deserves an opportunity to achieve certain milestones in life, like growing up and falling in love, that often occur during adolescence and young adulthood. To the extent that life years leading up to those milestones are more valuable, we might want to offer younger people more protection. We might also want to ensure that temporary injuries do not impede those opportunities. (Something like this view might be at work here, where one couple recently wrote up a bucket list for their terminally ill infant and went to great lengths to ensure that they checked off each entry.)
  • Children might deserve an open future.

Stay tuned for Part III, where I will discuss what these empirical patterns might mean for tort law …

 

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Child Safety, Part I

Parents: Do you invest more in your child’s safety than your own? Less? Roughly the same amount?

I’ve been pondering these questions lately. I have numerous friends who have purchased safer cars once they became parents, or suddenly took an interest in the finest of fine print on warning labels. These anecdotes suggest that we invest more time and money in child safety compared to adult safety.  Interestingly, more rigorous empirical examinations support these anecdotes. Those data suggest that parents invest about twice as much in protecting children as they do in protecting themselves, even when both are facing the same probability of experiencing the same harm. Parents are not alone in this preference. Both parents and nonparents appear to want governments to invest about twice as many resources in protecting children as adults. Here’s some of the data:

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Readers: Does this ring true?

Stay tuned for what these preferences might mean for tort law…

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Prosecutors vs. Divorce Court Judges

What do prosecutors and divorce court judges have in common?

Although this sounds like the start to a lawyer joke, I think examining the two groups together can yield interesting insights. One commonality is their wide and essentially unreviewable discretion.   Prosecutors can decline to charge altogether or can choose which charges to bring.   Divorce court judges often decide based on broad notions of fairness how to split a couple’s entire life savings, and also have power to prohibit parents from having overnight guests when they have physical custody of their children.

The literature on prosecutors is full of potential solutions to the perceived problems of unchecked discretion. One solution is to provide more judicial review. This has been a popular proposal in family law as well, where commentators seek more appellate review of trial court discretion. In my previous post, I explored ways of incorporating community input into family law decisions. This could be framed as roughly analogous to calls for various forms community policing or notice and comment sentencing.

Other reforms call on prosecutors to voluntarily develop guidelines. I want to explore what that might look like if translated to the family law context. Could judges band together and create local guidelines? The answer appears to be no. Below the fold I argue that, contrary to what most appellate courts have held, there are reasons to think that individual judges should be allowed to publically announce their personal rules of thumb and groups of judges should be allowed to publically create group rules of thumb.

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Sex (and Money) in the City

Thanks to Solangel, Dan, and the rest of the folks at Concurring Opinions for inviting me to be a guest blogger this month!

A few weeks ago, an Oklahoma judge was tasked with dividing Harold and Sue Ann Hamm’s $2Billion marital estate. And the judge’s only guidance was to divide it in any way that was, in his mind, “fair,” “just,” and “reasonable.”  Billion dollar divorces like this one highlight long-known problems with divorce law. Namely, that courts have wide and almost unreviewable discretion over many aspects of a divorcing couples’ lives.  When I ask students in my family law class how they would divide a particular marital estate, I generally get a lot of variation.  Many people choose 50%-50%, a substantial number choose 66%-34% or 75%-25%, but there are always a lot of students who choose more extreme divisions, like 90%-10%.  This highlights the lottery-like aspect of many family law issues.

But what can be done? I want to float a controversial idea, and then very briefly explain why it deserves serious attention.

Here’s the idea: Let local governments (like city councils) weigh in on how local judges should exercise their discretion.

The rest is below the fold…

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