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Sunday, April 1, 2007

Updated: Becker & Posner on the Tort System

The Becker-Posner blog is featuring a discussion on the recent Jackpot Justice study.  Well, right now, it's just got Becker's post that appears to be in response to a Posner post that I don't yet see up.  But presumably Posner's post will show up eventually. (Edit: It did and is linked to at the end.)

Becker, after agreeing with Posner's apparent statement that the study overstates costs, advocates for a rebuttable presumption of caveat emptor and a limitation of punitive damages to, generally, four times compensatory damages.  He also discusses forum shopping but concludes that ultimately it probably increases predictability.

As for the study, I still haven't had a chance to sit down with it with any care, but continue to be underwhelmed by their decision to compare U.S. tort costs with those of other industrialized countries and declare any difference to be excess.  One could quite rationally conclude that greater costs were worthwhile in having the system we have; similarly, other countries may have chosen to pursue similar goals through different systems (i.e., greater regulatory state power or stronger criminal penalties).  Those countries' increased spending on other regulatory schemes wouldn't necessarily be "excess" any more than increased tort costs are "excess" here.

I do, it should be noted, think that there are significant excesses in the U.S. system.  But I don't think that comparison is particularly useful.

The Blawgletter blog has more criticisms (via New York Personal Injury Blog).

Update: Posner's post is now up here, and sure enough, he finds the study to be questionable in substantial parts.

http://lawprofessors.typepad.com/tortsprof/2007/04/becker_posner_o.html

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