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The Trouble with Cases


Frederick Schauer


University of Virginia School of Law

Richard J. Zeckhauser


Harvard University - Harvard Kennedy School (HKS); National Bureau of Economic Research (NBER)

August 10, 2009

Virginia Law and Economics Research Paper No. 2009-09

Abstract:     
For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate is about whether policy-making or regulation by litigation is more or less socially desirable than more traditional policy-making by ex ante rule-making by legislatures or administrative agencies. In this paper we enter the debate, but not to come down on one side or another, all things considered, of the litigation versus ex ante rule-making regulatory debate. Rather, we seek to show that any form of regulation that is dominated by high-salience particular cases is highly likely, because of the availability heuristic and related problems of representativeness, to make necessarily general policy on the basis of unwarranted assumptions about the typicality of one or a few high-salience cases or events. And although this problem is virtually inevitable in regulation by litigation, it is far from absent even in ex ante rule-making, because such rule-making increasingly takes place in the wake of, and dominated by, particularly notorious and often unrepresentative outlier events. In weighing the value of regulation by ex ante rule-making against the value of regulation by litigation, it is important for society to recognize that any regulatory form is less effective just insofar as it is unable to transcend the distorting effect of high-salience unrepresentative examples.

Number of Pages in PDF File: 34

Keywords: regulation, rule-making, litigation, availability

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Date posted: August 12, 2009 ; Last revised: September 28, 2009

Suggested Citation

Schauer, Frederick and Zeckhauser, Richard J., The Trouble with Cases (August 10, 2009). Virginia Law and Economics Research Paper No. 2009-09. Available at SSRN: http://ssrn.com/abstract=1446897 or http://dx.doi.org/10.2139/ssrn.1446897

Contact Information

Frederick Schauer (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

Richard J. Zeckhauser
Harvard University - Harvard Kennedy School (HKS) ( email )
79 John F. Kennedy Street
Cambridge, MA 02138
United States
617-495-1174 (Phone)
617-384-9340 (Fax)
National Bureau of Economic Research (NBER) ( email )
1050 Massachusetts Avenue
Cambridge, MA 02138
United States
617-495-1174 (Phone)
617-496-3783 (Fax)
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