The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Some Realism About Realism

[UPDATE: Comments were initially disabled by a tech glitch, but they're working now.]


A commenter on the thread on "The Right to Defy Criminal Demands: Expensive Duties to Protect" wrote:

If an expensive "duty" to warn can't be imposed on crime victims it might interfere with the opportunity for lawyers to cash in at further expense to crime victims. I don't think too many lawyers will want to sign on to something that limits the profession's ability to win payouts from victims.

As a general matter, I appreciate the political economy / realism / cynicism point that people—including government officials and public commentators—often tend to act in their own self-interest (deliberately or subconsciously), or the interest of their professional or social tribe, even when they're talking about the public interest. That is human nature.

But it also seems to be human nature to overgeneralize about such matters, even in ways that seem inconsistent with the facts; and I think the comment I quoted above illustrates that. After all, quite a few lawyers work for business defendants (whether in-house or as outside counsel), and those businesses are indeed interested in limiting tort liability. Unsurprisingly, lots of people, including lawyers, have backed tort reform proposals, just as lots opposed them. And if we look at the overall pattern of tort law, made largely by lawyers who became judges (part of my audience for this article), we see quite a few rules limiting liability as well as rules enabling liability.

Lawyers just aren't a homogeneous group, and they don't have homogeneous incentives. We should be realistic about such incentives, by all means—but really realistic.

(This post's title is of course shamelessly borrowed from Karl Llewellyn, who used it in a somewhat different context.)