Legal Standards

This paragraph is confusing. "Objective" is not a synonym for "arbitrarily rigid," and the presence of doctrines of mistake or duress indicates lines of factual distinction among relevantly dissimilar situations, not the division of society into "communities" of people or mores.

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.

This is not an accurate statement of law. The root of defamation, as of all civil liability, is harm. Harm must be specially shown, historically, as loss of business, exclusion from social affairs, etc. Certain classes of words were presumed to cause harm, and those presumptions were joined, for historical reasons based in procedure and political control, with a general rule that harm need not be specially proved in cases of "libel," that is, published writings. The law also historically considered the issue of harm to be determined in relation to the plaintiff's particular condition: some people, the common law has always considered, have no reputation to lose. In this context only, as an evidentiary question solely, might the question of "community" arise.

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.

If the question is interesting, it must be for some reason you do not make clear to the reader. The issue is a matter of fact for the jury: did a false statement cause harm? Even if harm is presumed, its extent is an issue in proof of damages, and that evidence should be admitted which is relevant. Whether a law student is right in judging whether some trial courts did or did not suitably weigh the evidence in bench trials seems to me of no substantial interest whatever.

This assumes that "a standard for determining community" exists and is relevant to the decision of cases. I think that's nonsense, and nothing said here is persuasive to the contrary.

This graf makes no sense whatever to me.

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.

This appears to suggest that we are suddenly talking about geographic communities. Even the nebulous and probably irrelevant matters that seemed to be under discussion in the last paragraph were at least clearly not physical communities: they were, to the best I could discern, communities of reputation, the circles in which one travels, in which it either is or is not harmful to be inaccurately described as homosexual.

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.

The phrase "legal transparency" sounds big, but evidently means something little, like "courts explaining what they are doing when they decide whether particular words or phrases are harmful to the reputation of others." Are you actually talking about whether people will move themselves from one house or school district to another in order to cluster among people who are likely to share their values, thus rendering them more likely to collect damages if someone falsely describes them as homosexual? Despite how unlikely this seems, it is not clear what else you could mean, after all this windup.

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.

This makes less sense to me than the last graf. I don't even know how to frame an unlikely interpretation of these sentences.

The real world of course is more complex and lies somewhere in between the two extremes.

What 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.

Maybe that's what you think about, but you certainly haven 't made clear to the reader why she should think about that here. What does any of this have to do with showing that transactions costs are important in understanding the effects of legal liability rules or property allocations?

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)

I don't know what this essay is about. It is not accurate where it is clear, and mostly it is not clear enough to be inaccurate, either. A pretty thorough rewrite based on a carefully edited new outline is called for.

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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)