4 ms·

This is not new, merely ignored: "What's the origin of the phrase 'Hard cases make bad law'? ... 'Hard cases make bad law' isn't so much a universal proverb a

This is not new, merely ignored: "What's the origin of the phrase 'Hard cases make bad law'? ... 'Hard cases make bad law' isn't so much a universal proverb as a legal adage. It came to light in a comment made by Judge Robert Rolf in the case of Winterbottom v Wright in 1842: This is one of those unfortunate cases...in which, it is, no doubt, a hardship upon the plaintiff to be without a remedy but by that consideration we ought not to be influenced. Hard cases, it has frequently been observed, are apt to introduce bad law. The case required a judgment on whether third parties are able to sue for injury. The unusual nature of the case caused the judge to realise that, in the true sense of the expression, exceptions prove the rule and that, unfair as it might have appeared in some circumstances, the law was better drafted under the influence of the average case rather than the exceptional one. The point was made explicitly in 1903 by V. S. Lean, in Collectanea: Hard cases make bad law. that is, lead to legislation for exceptions." https://www.phrases.org.uk/meanings/hard-cases-make-bad-law.html https://www.phrases.org.uk/meanings/hard-cases-make-bad-law....

bombcar 4y ago
Something like this could (should?) perhaps be handled by governmental "remedy" service, a small insurance/tax against everyone that the judges can use to award remedy without forcing the defendant to pay.
- mannykannot 4y ago
  We have already moved on, and a case like this would no longer be regarded as unusual, let alone difficult. In the process, something like what you propose arose, in the form of liability insurance. The system works reasonably well, in that there are a lot fewer hard cases without creating a crippling burden in the average case. If anything, this case, together with the way things have changed since then, demonstrates that there is often a good deal of subjectivity in what constitutes a 'hard' case.
  - AnthonyMouse 4y ago
    But that only moves the problem somewhere else, because insurance is a moral hazard. Someone who would otherwise be cautious to prevent harm has less incentive to do it because when the harm comes the insurance pays.
    - deleted 4y ago
      [deleted]
    - mannykannot 4y ago
      Insurance is not free, and it generally gets more expensive the more reckless you are (or seem) to be (which is not to say this is the only factor in whether this is a zero-sum game, but it is arguably the most objectively quantifiable.)
      - AnthonyMouse 4y ago
        The moral hazard is the difference between the insurance payout and the amount your future rates change as a result of the claim. If this amount is zero, there is no insurance. If it isn't, there is that much less incentive to avoid the harm.
        mannykannot 4y ago
        Much less? Can you explain this immediate threshold as soon as the moral hazard is non-zero?
        AnthonyMouse 4y ago
        "That much less" meaning equal to the difference between the amount of the harm and what they'd expect to pay in increased premiums. If spending $X would avoid a small chance of a million dollars in damage, the X you're inclined to spend is a lot larger if the potential loss is the full million dollars than if it would increase your insurance premiums by a net present cost of $1000.

bombcar 4y ago

Something like this could (should?) perhaps be handled by governmental "remedy" service, a small insurance/tax against everyone that the judges can use to award remedy without forcing the defendant to pay.

mannykannot 4y ago
We have already moved on, and a case like this would no longer be regarded as unusual, let alone difficult. In the process, something like what you propose arose, in the form of liability insurance. The system works reasonably well, in that there are a lot fewer hard cases without creating a crippling burden in the average case. If anything, this case, together with the way things have changed since then, demonstrates that there is often a good deal of subjectivity in what constitutes a 'hard' case.
- AnthonyMouse 4y ago
  But that only moves the problem somewhere else, because insurance is a moral hazard. Someone who would otherwise be cautious to prevent harm has less incentive to do it because when the harm comes the insurance pays.
  - deleted 4y ago
    [deleted]
  - mannykannot 4y ago
    Insurance is not free, and it generally gets more expensive the more reckless you are (or seem) to be (which is not to say this is the only factor in whether this is a zero-sum game, but it is arguably the most objectively quantifiable.)
    - AnthonyMouse 4y ago
      The moral hazard is the difference between the insurance payout and the amount your future rates change as a result of the claim. If this amount is zero, there is no insurance. If it isn't, there is that much less incentive to avoid the harm.
      - mannykannot 4y ago
        Much less? Can you explain this immediate threshold as soon as the moral hazard is non-zero?
        AnthonyMouse 4y ago
        "That much less" meaning equal to the difference between the amount of the harm and what they'd expect to pay in increased premiums. If spending $X would avoid a small chance of a million dollars in damage, the X you're inclined to spend is a lot larger if the potential loss is the full million dollars than if it would increase your insurance premiums by a net present cost of $1000.