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Abstract:
Finding the rightful measure of compensation involves first finding the right baseline. But baseline problems, though common throughout law, are remarkably ill-understood. Rather than solve these problems outright, this essay seeks to get to the bottom of their multiple roots. The four kinds of cases being considered are typified by (1) the plaintiff whose leg the defendant tortiously broke - thus preventing him from getting on the plane that crashed (i.e., "failure to worsen" cases); (2) the plaintiff whose loss of legs due to defendant's tortious conduct caused her to give up her career as a professional athlete - with the result that she is now much happier and has no regrets about losing her former career (i.e., "subjective improvement" cases); (3) the promisee of an enforceable contractual promise asking to be put in the position he would have been in had the promise been kept rather than had the promise never been made (i.e, the contract damage question); (4) the plaintiff who but for defendant's tortious conduct would not exist, with particular emphasis on the descendants of slaves who but for slavery would not have existed, and surely not in the United States.

jurisprudence, remedies, torts, contracts

Abstract:
Most legal scholars assume that if V consents to allow D to do something to him, such consent makes D's actions legally and morally acceptable. To be sure, they are willing to make an exception when consent is given under a specified list of conditions: Force, fraud, incompetence, third-party effects, unequal bargaining power, commodification, paternalism - all of these may be grounds for rejecting the validity of V's consent. We might call scholars who take this view of consent quasi-libertarians. In this Article, I argue against the quasi-libertarian view of consent. My central claim is that the validity of consent must be significantly more restricted than the quasi-libertarians assume, if the law is to avoid inconsistency in a number of domains. In particular, I claim that the law will encounter problems of cycling with respect to its core values if consent is allowed the relatively unrestricted scope quasi-libertarians assume for it.

The law has avoided such cycles because courts and legislatures in fact restrict consent far more widely than the familiar list of exceptions suggests, although usually without realizing what they are doing. The law is actually not quasi-libertarian. I explore several examples of this: our wariness of tradable pollution permits, our restriction on the assumption of risk defense, the ubiquity of so-called victimless crimes, and the impossibility of enforcing a personal service contract by specific injunction. These examples are far from exhaustive.

Further, I argue that the additional restrictions on consent I identify have implications for the recent debate concerning the proper role of welfare economics in law. They suggest that the Pareto principle (which says that policies which benefit some and hurt no one are to be pursued) is an unreliable guide for public policy.

law and economics, consent, criminal law, tort law, contracts

Abstract:
Legal doctrine exhibits some striking temporal anomalies, previously not much adverted to. Wrongdoing looked at before it has occurred, and after is has occurred, is apt to look very different. I take up the two key components of wrongdoing seriatim, the harm-portion and the misconduct-portion: the "damage" part and the "liability" part. We tend to look at harm in a harm-agnifying way before it has occurred, and in a harm-inimizing way afterwards. We thus tend to think about negligence and the harm it wreaks in seemingly inconsistent ways. I examine and reject some possible explanations of this. Misconduct too looks different before and after, and the reason seems to be a certain spacing phenomenon: space blameworthy actions closely together and their overall blameworthiness can turn out to be greater or less than the sum of its individual blameworthy parts. The ex ante perspective involves looking at how much the piece contributes to the overall blameworthiness of the defendant's actions. If, therefore, for some reason the sum of the blameworthy acts is greater or less than the overall blameworthiness of the defendant, we get an ex ante/ex post inconsistency. I offer a sketchy and tentative account of the likely bases of this spacing effect.

criminal law, jurisprudence, torts, misconduct, blame, liability, punishment

Abstract:
Economists and philosophers working on problems of rational choice have for some time been concerned with various puzzles raised by so-called "Ullysean" configurations: actors who rationally cause themselves to act irrationally. (e.g., the person who swallows Thomas Schelling's famous irrationality pill to preempt an attempted robbery). What has attracted less attention is that these configurations present fascinating problems for morality, most especially for non-consequentialist morality. This article undertakes the exploration of some of these problems and the implications they hold for the morality of preemptive detention, preemptive self-defense, the creation of prophylactic crimes (like our drug laws) and a variety of other preemptive practices.

Abstract:
Etymology notwithstanding, not all seriously harmful villainies qualify as felonies. Or at least our moral intuition tells us that they should not. Traditional approaches to criminalization - like utilitarianism, the harm theory, legal moralism - have real trouble accounting for that, indeed have rarely even addressed it, and need to be revised somewhat to deal with it. But even if we know which harmful villainies we do not want to criminalize and why, we are still left with difficult and unexplored questions about whether we should let the non-criminalizable misconduct figure more indirectly in our application of criminal law doctrines, in determining for instance the scope of self-defense, or recklessness, or proximate causation, or necessity. Although this essay has dealt mostly with harmful misconduct, the analysis has implications as well for more familiarly hard-to-criminalize wrongdoing, like self-injurious behavior, and certain interactions between consenting adults.