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Legal Standards*

-- By AlexWang - 15 Feb 2012

Justice has never been objective, but we have the pleasing image of it as an immutable Platonic form because we have a notion that justice should be fair. Lady Justice wears a blindfold to be unbiased so as to mete out justice fairly, between the parties. We would like to have one single, objective form of justice because having one standard is fair for everyone. But what is fair for one person is not fair for another and so there are different standards the law uses. We are all familiar with the varying standards embodied in doctrines like excuse, mistake, duress, mental illness, misrepresentation, etc., and we are comfortable with the law having different standards for different people because those standards are fair to the people to which they apply. What is legally fair to the mentally handicapped is the same was what is fair for the non-handicapped. Fairness seems primarily to be that those “similarly situated” are treated the same. Justice then is obviously not objective in the sense of being the same for all people, but depends fundamentally on the community for which standards are adopted.

Some laws are more explicit about the need for a referential community than others. In defamation law, whether a statement is defamatory depends whether the statement harms the reputation of the individual in her community. Courts often rely on a “right-thinking” or a “substantial and respectable minority” standard to define the community. In Abigail A. Rury, He’s So Gay…Not That There’s Anything Wrong With That: Using a Community Standard to Homogenize, 17 Cardozo Journal of Law and Gender 665 (2011), Rury asks the interesting question of how courts should decide whether false imputation of homosexuality is defamation. She states that courts should follow the example of Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004) and Stern v. Cosby, 645 F. Supp. 2d 258 (S.D.N.Y. 2009) by identifying the relevant community by looking at public opinion polls, testimony, legislation, and case law. This approach would seem to accord with Holmes’s position that judges should talk about what they are trying to do and less about the logic of rules in that this is exactly the type of approach that would help prevent decisions by judicial fiat and whose transparency would enable us to better see the social forces a court were trying to balance. By being transparent in the definition of a legal community and thus being transparent in setting the standard, reliance on evidence of self-identification would prevent ex post rationalization.

There are of course a few problems with this method. One issue is how trust worthy the evidence the court uses is as a reflection of the community’s standards. Imposing standards on a “substantial and respectable minority” that they have not in any way consented to or believe in seems patently unfair (the community standard problem of defamation in the first place). Perhaps public opinion polls and testimony to be more reflective of community standards, but how much can we trust legislation and case law becomes a question of how much we trust the representative power of the political process. Undoubtedly, the poor are almost always subject to rules made by those with resources to lobby and litigate cases. Opinion polls and open court testimony and depositions maybe skewed from only attracting certain members of the community and not others.

But assuming courts can accurately gauge the values of the community, having transparency in creating legal standards gives rise to the problem that knowing how standards are set, people will reorganize communities so that each person only lives with those whose values they share. The law, being able to accurately recognize these values and respecting them, will only enact laws reinforcing pre-existing social values. We know that even people with the slightest preferences move to insulated communities that reflect those preferences even without legal incentives (Schelling’s checkerboard model of racial discrimination), so such a reorganizing in response to legal transparency may happen. But beyond the obvious problems that small, legally-empowered, segregated communities engender, there is a question of what the law actually does in a situation like this. Here, the law does no more than codify pre-existing and extremely strong social norms in very insular, self-segregating communities. Here extra-legal norms would dominate and the marginal benefit of the law is likely very low and likely much lower than the marginal cost of enforcing or creating the law. The law would not even be worthwhile. So it seems that either the law is not transparent and risks imposing standards from one community by judicial fiat on groups of individuals from another, which offends our notion of fairness; or the law is too transparent and fairly imposes the right standards but does not really need to.

The real world of course is more complex and lies somewhere in between the two extremes. Now that I think about it, this thought experiment essentially just illustrates an application of the Coase Theorem that shows the irrelevance of the assignment of legal rights in a world without transaction costs. It is unrealistic to take away the costs of people relocating in response to legal transparency and the costs that prevent accurate representation of a community’s interests. But another transaction cost that we assumed away is the opaqueness in legal standard making. This, however, is something that unlike the greater societal transactions costs, the courts could readily unwind. But by lifting the veil (and assuming away certain costs), we begin to wonder what the law actually does. Is it just a function of an imperfect market? Are there already pockets efficient enough that some laws there should be rescinded but they survive as tentacles of an ancient monolith? Perhaps, in which case revealing the tricks ruins the magic show. (965 words)