Wednesday, November 7, 2007

Which mechanisms are best

With multiple mechanisms available to society for providing payments to its members in cases where they experience loss or damage, and multiple mechanisms for trying to regulate behavior to try to lessen damage or harm that members of society cause to one another, society is confronted with deciding which mechanisms or mix of mechanisms are best for trying to achieve those objectives.

Plaintiffs lawyers do not want to engage in any consideration of what the mechanisms are that society has and what will best achieve society's objectives, because the answer may come out unfavorable to them in reducing their litigation and reducing the amounts of payments made in litigation or through settlement.

I contend that an extremely important element of deciding which mechanisms are best for providing compensatory payments to members of society who experience loss or harm is whether one party has intentionally or negligently caused another party harm or damage. If there is intentional or negligent wrongdoing, there is a correspondence between making the party who intentionally or negligently caused harm to another to pay for the loss or damage and the deterrent effect under society's regulatory purpose in order to deter people from acting in a way that intentionally or negligently harms others.

To the extent there a harm or damage but there is not intentional or negligent wrongdoing, there is only a shifting of the burden of the loss between innocent parties, and the objective of regulating behavior is not served. I contend this makes is less appropriate for the civil liability system to be the mechanism by which a compensatory payment is made to the party who has experienced the loss.

Plaintiffs' lawyers don't want any hedging of the civil liability system by reference to the presence of intentional or negligent wrongdoing, because that may reduce the amount of litigation and payments pursuant to the civil liability system.

No comments: