8 ms·

The law, especially in civil cases, isn't there to punish losers. It's there to fix harms done. If you win, you get paid an approximation of your harm. Class a

by ikeboy 6y ago

The law, especially in civil cases, isn't there to punish losers. It's there to fix harms done. If you win, you get paid an approximation of your harm. Class actions exist to solve the collective action problem of the harm not being large enough for a single person to pursue.

BrandoElFollito 6y ago
For me the law is to bring fairness. This includes the fact that if someone is disproportionately stronger than me, they should be ready to face the consequences. In other words the court should not be only there to fix harm, but also to teach a lesson.
- dnautics 6y ago
  That's particularly dangerous as the "lessons to be taught" are quite subjective and someday may skew towards behaviours that you may not like coming from a state, and eventually converge to self-serving and self-perpetuating "lessons". After all, it's already bad under the more restrictive standard of "reasonable damages"
  - im3w1l 6y ago
    > That's particularly dangerous as the "lessons to be taught" are quite subjective and someday may skew towards behaviours that you may not like coming from a state Sorry what.. are you arguing against the concept of criminal law?
    - ikeboy 6y ago
      We're talking about civil law here.
      - im3w1l 6y ago
        I brought up criminal law to make a point: That we already trust the state to "teach people lessons" so the fears of what would happen if we gave the state the power to "teach people lessons", is kind of.... we already know the answer.
        ikeboy 6y ago
        I honestly don't know if your point is that it's fine to give the state this power, or if that widespread abuse shows that it's not fine.
        dnautics 6y ago
        I don't think we trust the state to "teach people lessons" (ok we're not talking about public schools here). We trust the state to deter people from causing physical harm to others. For example, the united states constitution (not that that's followed anymore) doesn't explicitly charter the government to "teach people lessons" it charters the government to act in the interest of the "general welfare". Because western states have happened to have chosen over the centuries to protect the general welfare by justifying its methods as "teaching people lessons" is neither explicitly permitted in any charter so far as I know (admittedly a small subset) nor necessarily desirable. I think it's not a n unfair argument that over the few centuries of modern history you can point to several incidents, sampled across many different nation-states, where particularly disgusting injustice has been promulgated under the cover of "teaching lessons", as if the general cover of "greater good" weren't bad enough. As CS lewis quipped, "Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."
- ikeboy 6y ago
  See, I get scared when people want to use the courts to "teach a lesson." That's not what they're intended for. If all harms are efficiently deterred and compensated, it's only our base animal instincts that suggest there's something more that needs to happen. Civilisation, of which the legal system is a subset, is there precisely to tame our baser instincts. Just to head off a foreseen objection: the correct amount of deterrence isn't to prevent a harm from ever happening (trivial, just bankrupt everyone who does any harm), but to provide a negative incentive on the perpetrator equal to the harm they will cause by doing some act. If the chances of someone being caught are low, then it's proper to multiply the eventual fine by the inverse of the probability, which creates the required incentive. If someone showed malice, then that's evidence that the incentives were insufficient, and a reason to increase the fine. But none of that, from a legal theory perspective, is to punish them or bring fairness - it's to create the appropriate economic incentives. Read up on https://en.wikipedia.org/wiki/Efficient_breach https://en.wikipedia.org/wiki/Efficient_breach for an example of this kind of thinking.
  - pulisse 6y ago
    > See, I get scared when people want to use the courts to "teach a lesson." That's not what they're intended for. Punitive damages are a longstanding feature of civil law.
    - ikeboy 6y ago
      And if you'd read the rest of my comment, you'll notice two different rationales behind punitive damages that have nothing to do with teaching lessons. It's all about deterrence.
      - Jordrok 6y ago
        I don't see the distinction. The "lesson" to be taught is that large entities should not use the legal system as a bludgeon to suppress smaller entities - i.e. to deter this kind of behavior. This happens all the time, not just with copyright law, so doesn't that seem to imply that the penalty for the larger party is insufficient?
catalogia 6y ago
> The law, especially in civil cases, isn't there to punish losers. Nice theory, but in practice the process itself is often a punishment. Even winning a bogus case against you can come at great personal expense.
- ikeboy 6y ago
  You're not wrong. I'm just responding to someone who's asking about theory, and I'm explaining why the courts work the way they do. They do have to balance the cost to the parties of litigation with the right of people to get justice. Note that if a case is deemed frivolous, costs can be awarded to the defendant, and some kinds of meritless cases can result in fee awards even if they aren't meritless (see e.g. anti-slapp.)
  - catalogia 6y ago
    Having your legal fees covered is a good start, but it can't give you back time wasted, or take back the gray hairs. I think it's fairly safe to say that our system doesn't go far enough to protect individuals in legal battles with corporations, for whom the process is far less stressful.
    - ikeboy 6y ago
      What reform could you propose that solves this? The flip side is that anything you do to increase payouts also increases the number of suits brought, which is less efficient. Any policy regarding the legal system ends up hurting some group and creating some inefficiencies, and it's a matter of trying to make sure the incentives you create lead to more benefits than harm.
      - catalogia 6y ago
        I wouldn't claim to have all the answers, but I think much harsher penalties for SLAPP stuff should be considered. Corporate lawyers should be required to have some real skin in the game, so perhaps flogging [and disbarring] the lawyers that made the lawsuit possible. If lawyers started getting flogged for their 'mistakes' I think they'd exercise a bit more discretion about the sort of lawsuits they choose to participate in. > The flip side is that anything you do to increase payouts also increases the number of suits brought So if we flog lawyers for SLAPP suits, they'd do it more often? I have doubts about that; we should put that theory to the test.
xaedes 6y ago
If your conception of law was true I could do the following: Steal stuff all the time. Sometimes I would get catched for whatever I was stealing. Proudly I will face all of the consequences: I just give back what I was stealing. All harm done is fixed. I keep all the other stuff that I stole where I was not catched. Why should I stop with that enterprise? The law certainly doesn't stop me. Isn't that law way too gameable? I think a system like this would only "work" if you catch _everything_ unlawful. You basically need a totalitarian police state dystopia for this. I think the law should incentivize right behaviour and disincentivize wrong behaviour. Not just to fix harms done.
- ikeboy 6y ago
  If you'd read some of my below comments, you'd notice I addressed this scenario. Fines should be adjusted for the probability of getting caught. Also, certain torts, like stealing, are considered criminal.

by ikeboy 6y ago

BrandoElFollito 6y ago

For me the law is to bring fairness. This includes the fact that if someone is disproportionately stronger than me, they should be ready to face the consequences. In other words the court should not be only there to fix harm, but also to teach a lesson.

dnautics 6y ago
That's particularly dangerous as the "lessons to be taught" are quite subjective and someday may skew towards behaviours that you may not like coming from a state, and eventually converge to self-serving and self-perpetuating "lessons". After all, it's already bad under the more restrictive standard of "reasonable damages"
- im3w1l 6y ago
  > That's particularly dangerous as the "lessons to be taught" are quite subjective and someday may skew towards behaviours that you may not like coming from a state Sorry what.. are you arguing against the concept of criminal law?
  - ikeboy 6y ago
    We're talking about civil law here.
    - im3w1l 6y ago
      I brought up criminal law to make a point: That we already trust the state to "teach people lessons" so the fears of what would happen if we gave the state the power to "teach people lessons", is kind of.... we already know the answer.
      - ikeboy 6y ago
        I honestly don't know if your point is that it's fine to give the state this power, or if that widespread abuse shows that it's not fine.
      - dnautics 6y ago
        I don't think we trust the state to "teach people lessons" (ok we're not talking about public schools here). We trust the state to deter people from causing physical harm to others. For example, the united states constitution (not that that's followed anymore) doesn't explicitly charter the government to "teach people lessons" it charters the government to act in the interest of the "general welfare". Because western states have happened to have chosen over the centuries to protect the general welfare by justifying its methods as "teaching people lessons" is neither explicitly permitted in any charter so far as I know (admittedly a small subset) nor necessarily desirable. I think it's not a n unfair argument that over the few centuries of modern history you can point to several incidents, sampled across many different nation-states, where particularly disgusting injustice has been promulgated under the cover of "teaching lessons", as if the general cover of "greater good" weren't bad enough. As CS lewis quipped, "Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."
ikeboy 6y ago
See, I get scared when people want to use the courts to "teach a lesson." That's not what they're intended for. If all harms are efficiently deterred and compensated, it's only our base animal instincts that suggest there's something more that needs to happen. Civilisation, of which the legal system is a subset, is there precisely to tame our baser instincts. Just to head off a foreseen objection: the correct amount of deterrence isn't to prevent a harm from ever happening (trivial, just bankrupt everyone who does any harm), but to provide a negative incentive on the perpetrator equal to the harm they will cause by doing some act. If the chances of someone being caught are low, then it's proper to multiply the eventual fine by the inverse of the probability, which creates the required incentive. If someone showed malice, then that's evidence that the incentives were insufficient, and a reason to increase the fine. But none of that, from a legal theory perspective, is to punish them or bring fairness - it's to create the appropriate economic incentives. Read up on https://en.wikipedia.org/wiki/Efficient_breach https://en.wikipedia.org/wiki/Efficient_breach for an example of this kind of thinking.
- pulisse 6y ago
  > See, I get scared when people want to use the courts to "teach a lesson." That's not what they're intended for. Punitive damages are a longstanding feature of civil law.
  - ikeboy 6y ago
    And if you'd read the rest of my comment, you'll notice two different rationales behind punitive damages that have nothing to do with teaching lessons. It's all about deterrence.
    - Jordrok 6y ago
      I don't see the distinction. The "lesson" to be taught is that large entities should not use the legal system as a bludgeon to suppress smaller entities - i.e. to deter this kind of behavior. This happens all the time, not just with copyright law, so doesn't that seem to imply that the penalty for the larger party is insufficient?

catalogia 6y ago

> The law, especially in civil cases, isn't there to punish losers. Nice theory, but in practice the process itself is often a punishment. Even winning a bogus case against you can come at great personal expense.

ikeboy 6y ago
You're not wrong. I'm just responding to someone who's asking about theory, and I'm explaining why the courts work the way they do. They do have to balance the cost to the parties of litigation with the right of people to get justice. Note that if a case is deemed frivolous, costs can be awarded to the defendant, and some kinds of meritless cases can result in fee awards even if they aren't meritless (see e.g. anti-slapp.)
- catalogia 6y ago
  Having your legal fees covered is a good start, but it can't give you back time wasted, or take back the gray hairs. I think it's fairly safe to say that our system doesn't go far enough to protect individuals in legal battles with corporations, for whom the process is far less stressful.
  - ikeboy 6y ago
    What reform could you propose that solves this? The flip side is that anything you do to increase payouts also increases the number of suits brought, which is less efficient. Any policy regarding the legal system ends up hurting some group and creating some inefficiencies, and it's a matter of trying to make sure the incentives you create lead to more benefits than harm.
    - catalogia 6y ago
      I wouldn't claim to have all the answers, but I think much harsher penalties for SLAPP stuff should be considered. Corporate lawyers should be required to have some real skin in the game, so perhaps flogging [and disbarring] the lawyers that made the lawsuit possible. If lawyers started getting flogged for their 'mistakes' I think they'd exercise a bit more discretion about the sort of lawsuits they choose to participate in. > The flip side is that anything you do to increase payouts also increases the number of suits brought So if we flog lawyers for SLAPP suits, they'd do it more often? I have doubts about that; we should put that theory to the test.

xaedes 6y ago

If your conception of law was true I could do the following: Steal stuff all the time. Sometimes I would get catched for whatever I was stealing. Proudly I will face all of the consequences: I just give back what I was stealing. All harm done is fixed. I keep all the other stuff that I stole where I was not catched. Why should I stop with that enterprise? The law certainly doesn't stop me. Isn't that law way too gameable? I think a system like this would only "work" if you catch _everything_ unlawful. You basically need a totalitarian police state dystopia for this. I think the law should incentivize right behaviour and disincentivize wrong behaviour. Not just to fix harms done.

ikeboy 6y ago
If you'd read some of my below comments, you'd notice I addressed this scenario. Fines should be adjusted for the probability of getting caught. Also, certain torts, like stealing, are considered criminal.