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Monday, May 14, 2007

Near Misses & Tort Law

Interesting sounding article on SSRN (forthcoming Illinois Law Review) about proximity and the law.  The abstract:

Perceptions of proximity matter to people. When something that harms them was nearly avoided, or when they narrowly escape being harmed by something, or when they almost acquire something they want, but nevertheless fail to do so, they tend to react more strongly than when a harm that befalls them was unavoidable or when a potential harm never came close to occurring, or when they miss getting the thing they want by a lot. In this article, we explore these psychological phenomena and their implications for legal policy and process. We begin by reviewing the existing literature on the psychology of proximity and proceed to consider the implications of that psychology for the law of torts and crimes (i.e., harms), and for the law of auctions and gambling (i.e., goods). We then turn to examples of the phenomena produced by law itself - that is, to near misses of legality. Here we address how lawmakers could mitigate the frustrations of near misses by structuring law, and the manner in which legal judgments are issued, differently. In particular, we will focus on the implications of the psychology of proximity for the rules-standards debate and assess the virtues of substantial compliance doctrines in that context, a form of legal structure that has received insufficient attention in the course of that debate. Our ultimate conclusion is that lawmakers should take the psychology of proximity into consideration when they make policy choices, but in so doing lawmakers need to bear in mind the potential functionality of that psychology. Near miss experiences can be painful but simultaneously educational, stirring behavioral adjustments in those who endure them.

http://lawprofessors.typepad.com/tortsprof/2007/05/near_misses_tor.html

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