Thursday, September 15, 2022
Morgan Savige & John Fabian Witt have posted to SSRN Foreseeability Conventions. The abstract provides:
How has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinal fields. But for a century and more, critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum of foreseeability’s puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived and flourished, the Article proposes, not because it carries determinate meaning (it does not), but because lawyers, judges, and juries have established fixes or hacks -- what in this Article we call foreseeability conventions -- to settle what would otherwise be intractable foreseeability problems. Foreseeability conventions work because they give the concept meaning in particular fields and in discrete situations, furthering the law’s basic goals in especially thorny categories of recurring cases. We describe two types of conventions: storytelling or narrative conventions, on the one hand, and per se conventions, on the other. We offer salient illustrations, relying especially on the law of torts, showing how the law substitutes rough-hewn proxies for impenetrable foreseeability questions. In closing, we propose that the conventions strategy for resolving indeterminacy is widespread and even pervasive in the law. We observe, too, that the conventions strategy is being put to use today in solving controversial, high-profile legal problems in our age of political and cultural division – even as social fracture risks undermining the tacit agreements on which doctrinal conventions rest.