Abstract

http://ssrn.com/abstract=1974565
 


 



Aggregation and Law


Ariel Porat


Tel Aviv University; University of Chicago - Law School

Eric A. Posner


University of Chicago - Law School

January 1, 2011

Yale Law Journal, Vol. 122, 2012
U of Chicago, Public Law Working Paper No. 375
University of Chicago Institute for Law & Economics Olin Research Paper No. 587

Abstract:     
If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent claims, and each of them is too weak to justify a remedy, the plaintiff will usually lose, even if the claims are jointly powerful enough to justify a remedy. Thus, as a general rule courts refuse to engage in what we call factual aggregation (the first case) and normative aggregation (the second case). (We also identify other forms of aggregation.) Yet we show numerous exceptions to this rule in private and public law. Notably, in public law the hybrid rights doctrine permits courts to aggregate two weak constitutional claims as long as one involves free exercise of religion. In private law, certain tort and contract doctrines also permit aggregation. We criticize the courts’ inconsistent approaches to aggregation, and propose conditions under which courts should (and should not) aggregate.

Number of Pages in PDF File: 68

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Date posted: December 20, 2011 ; Last revised: October 13, 2012

Suggested Citation

Porat, Ariel and Posner, Eric A., Aggregation and Law (January 1, 2011). University of Chicago Institute for Law & Economics Olin Research Paper No. 587; Yale Law Journal, Vol. 122, 2012; U of Chicago, Public Law Working Paper No. 375; University of Chicago Institute for Law & Economics Olin Research Paper No. 587. Available at SSRN: http://ssrn.com/abstract=1974565 or http://dx.doi.org/10.2139/ssrn.1974565

Contact Information

Ariel Porat
Tel Aviv University ( email )
Ramat Aviv
Tel Aviv 69978, IL
Israel
972-3-6408283 (Phone)
972-3-6407260 (Fax)
HOME PAGE: http://www.law.tau.ac.il/Heb/?CategoryID=357&ArticleID=388
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
Eric A. Posner (Contact Author)
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)
HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/
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