Ideas We Can Use – Legal Systems Very Different From Ours Ideas We Can Use David Friedman
Quali istituti giuridici potremmo copiare dal passato remoto?
In modern tort law, it is up to the victim to identify and prosecute the tortfeasor. In the Icelandic system it was also up to him, once he got a verdict from the court, to enforce it. That could be a problem for a victim with insufficient resources… The solution, described in Chapter XX[ Iceland], was to make claims transferable, permitting the victim to transfer his claim to someone better able to pursue it…. crime victims usually collect nothing under our system….
DIRITTI AL RISARCIMENTO NEGOZIABILI…COME NELL’ISLANDA MEDIEVALE
Consider the application of the same approach to modern tort law, where the victim needs resources to win his case even if not to enforce the verdict. A careless driver damages your car and perhaps you. You cannot afford a lawyer. You may be able to get a law firm to take the case on a contingency basis, in exchange for a share of whatever damages it collects. But you may find it hard to judge which law firm will do the best job… If tort claims were fully marketable you could simply auction the claim off to the highest bidder.
UNA POSSIBILE APPLICAZIONE MODERNA DEI DIRITTI AL RISARCIMENTO NEGOZIABILE
Consider a tort that does a small amount of damage to each of a large number of people. The current mechanism for dealing with such is a class action… While the attorney has an incentive to try to win the case and collect damages, he also has an incentive to direct as much as possible of the payment to himself rather than to his supposed clients. Ideally the judge keeps him honest. If not, the attorney agrees with the defendant on a multi-million-dollar settlement consisting of a million dollars in real money to him, ten million for the tort victims in the form of an offer of discounts on future purchases. Suppose tort claims were marketable. A firm such as an insurance company that routinely deals with a large number of customers offers a discount to anyone willing to sign over to it all tort claims he might have in the next year for less than a hundred dollars. An enterprising lawyer concludes that ten million people have gotten mildly sick due to something wrong with a brand of canned beans, giving each a legitimate claim for ten dollars in damages. The lawyer goes to the insurance company and offers to buy all of their claims for injury from canned beans. He makes the same offer to other firms that have similarly purchased their customers’ small claims. When he is done, he owns three million claims for ten dollars each. He goes to the bean company and offers to settle for eighty cents on the dollar, twenty-four million dollars. If they turn him down he sues– not on behalf of the victims, who have sold their claims to him via middlemen, but for himself. There is no need for an attorney to pretend to represent millions of people
ALTRO VANTAGGIO: ALTERNATIVA ALLA CLASS ACTION
an understanding of the logic of feud law can help us make sense of legal conflicts in the modern world.
LA LOGICA DELLA VENDETTA: PRESENTE ANCHE OGGI PER FAR FUNZIONARE IL SISTEMA
Imagine that Apple is considering suing Samsung for a patent violation of which Samsung is not actually guilty… There are at least two reasons why Apple might do so. One is the chance that the court will mistakenly decide in Apple’s favor, patent law being a complicated subject. The other is that the litigation imposes significant costs on a rival… One argument against suing is the risk that Samsung might retaliate… even if the countersuit is not profitable as a gamble on court error or a way of reducing Apple’s sales in favor of Samsung’s, being committed to such a countersuit is one way of deterring the initial suit,… The implicit feud system in modern patent litigation provides a mechanism for deterring meritless suits
LITI SENZA FONDAMENTO. ARGINATE SOLO DALLA MINACCIA DI RITORSIONI.
The Invulnerable Plaintiff
A non-practicing entity, referred to by critics as a patent troll, owns a collection of patents, practices none of them, sues practicing entities for alleged infringement but faces no risk of an infringement countersuit. It is invulnerable to retaliation,
PATENT TROLL. NATI PER DENUNCIARE. CON LORO LA VENDETTA NON FUNZIONA
In the case of Samsung, there is an obvious reason not to settle– paying off one plaintiff with a weak case will encourage others.[
LE PICCOLE DITTE VITTIME PREFERITE DEI TROLL. LE GRANDI SI VENDICANO ANCHE IN PERDITA
It follows that even if the feud system is adequate as a way of controlling patent suits among producing companies it is impotent to control bogus patent suits by non-practicing entities.
BOGUS NEL SISTEMA DELLE FAIDE
The Athenian Rule: A Modest Proposal for Revising Tort Law
Under the American rule, each party to a tort suit pays its own legal expenses. Under the English rule, the losing party to a tort suit owes the prevailing party compensation for its legal costs.[ 4] That provides a deterrent to a suit sufficiently meritless so that the plaintiff is virtually certain to lose.
CHI PAGA LE SPESE DELLA CAUSA. COME DISINCENTIVARE LE DENUNCE SENZA FONDAMENTO?
But a plaintiff who has some significant chance of winning, through court error or legal uncertainty, still has an effective threat.
MA NON È SUFFICIENTE
The fundamental problem, not limited to suits over intellectual property, is that a plaintiff who sues an innocent defendant in a system with legal error imposes a cost on him in addition to his legal costs– the risk of losing the case and being found liable for damages.
IL PROBLEMA FONDAMENTALE
We can use damages owed by the losing plaintiff to the prevailing defendant as a proxy for damages for the cost imposed by a plaintiff who sues an innocent defendant and wins. The logic is analogous to the case for punishing unsuccessful criminal attempts. Shooting at someone and missing does no harm…. These arguments suggest that the losing tort plaintiff should be liable to the defendant for damages, possibly based on the amount the plaintiff claimed and thus the size of the risk imposed,
RISARCIRE I DANNI OLTRE CHE I COSTI
a prosecutor who failed to get at least 20% of a large jury to vote for conviction was himself fined. Making the damages depend on the amount claimed would correspond to the rule in Athens for at least some of their equivalent of our tort cases;
NELL’ATENE DI PERICLE
The rule is particularly important in the patent troll case only because that is a situation where deliberately suing innocent defendants and then proposing settlement is argued to be a serious problem.
SETTORE BREVETTI PARTICOLARMENTE VULNERABILE
Another Idea From Athens
Every property owner must state a value for his property. If someone offers to buy it at that price he is obliged to accept.
LA DENUNCIA DEI REDDITI AD ATENE. IN REALTÀ DEL PATRIMONIO
The advantage of the self-assessed property tax is that it gives us a mechanism for setting the value to be taxed that does not depend on the existence of honest and competent assessors.
insecurity of my ownership of my home is too great a price to pay for the advantage of an automatically assessed value.
One possible modification would be to have property valued for purposes of taxation in the conventional way but allow a property owner to revise the taxable value of his property if he wishes by declaring his willingness to sell at a lower price.
UNA VARIAZIONE PIÙ DIGERIBILE
The usual argument for eminent domain, the legal rule that allows a government to force a property owner to sell at a price set by the government buyer, is that it is necessary to prevent the owner of a piece of property that blocks a project such as a new highway from taking advantage of the situation to charge an unreasonably high price. With a self-assessed property tax the property already has a price set by the owner, eliminating the problem and thus eliminating the argument for giving governments the power to force an owner to sell at a price set by the buyer.
An even simpler and more familiar example of the same approach is the rule for dividing something evenly: You cut, I choose.
Chinese Lessons on Contracts
Caveat emptor, “let the buyer beware,” the rule according to which a buyer takes goods as he finds them unless the seller explicitly warrants their qualities, may be useful in some contexts as a way of avoiding litigation.
the observation that parties may find it in their interest to structure contracts in ways designed to keep them out of court provides an argument for the doctrine of freedom of contract, under which contract terms are enforceable even if the court enforcing them considers them unwise.
CONTRATTO FONTE PRIMA DEL DIRITTO
Plea Bargaining and the Law of Torture
John Langbein argued that the modern practice of plea bargaining, like the medieval law of torture, came into existence as a way around problems raised by an unworkably high standard of proof.
TORTURA PROGENITRICE DEL PATTEGGIAMENTO
his article points out the risk that if additional protections for defendants make trials longer and more expensive the result may be not fewer convictions of innocents but more.
TESI: PROCEDURE TORTURA E PATTEGGIAMENTO SONO UNA REAZIONE AL GARANTISMO ECCESSIVO. LA STORIA DELLA TORTURA ILLUMINA
Plea Bargaining, Overcharging, and Athenian Law
Part of the problem with the modern system of plea bargaining is that a prosecutor can stack charges. Consider a defendant arguably guilty of an assault punished by a year in prison. The prosecutor charges him not only with that but attempted murder as well. Facing only an assault charge of which he believes himself innocent, the defendant might choose to go to trial with a reasonable hope of being acquitted. Charged with murder as well, facing a significant chance of a year in prison and a much smaller but non-zero chance of twenty years, he agrees to plead guilty to the lesser charge.
PERCHÈ SI PATTEGIA? PERCHÈ IL PM TI ACCUSA DI TUTTO (QUALCOSA PORTA A CASA)
One could, for instance, provide that if, in three different cases over a year, there was at least one charge on which fewer than four jurors voted for conviction, the prosecutor will be removed– a three strikes rule. That gives a prosecutor a reason not to file charges that he cannot support at trial.
INCENTIVO A NON CUMULARE LE ACCUSE
Consider instead, or in addition, a rule providing that a defendant who is acquitted on any one charge must receive the lowest legal penalty on any charges he is convicted of. That reduces the power of the prosecutor’s threat,
CONDANNA A PUNTI
To Catch Up With Eighteenth-Century England
Criminal prosecution in our legal system is by the government, so crimes the government approves of are unlikely to be prosecuted, and neither of those was.
CONFLITTO D’INTERESSE DEL P.M.
In eighteenth-century England, the solution was much simpler: Any Englishman could prosecute any crime.
In the U.S. at present, it is illegal for college students who are under twenty-one to buy, possess, or consume alcoholic drinks and illegal for others to provide alcoholic drinks to them. Would it be a good thing for a student with a grudge against his ex-girlfriend or her new boyfriend to be able to have one or both arrested, charged with (depending on the state and circumstances) a misdemeanor or felony and, if convicted, jailed for several months, conceivably several years?[ 7]
Under the English game laws, some wild animals were considered property of the Crown and hunting them restricted to the king or those he had authorized. The result, by the early 19th century, was that the right to hunt such animals did not always belong to the owner of the land on which they were hunted. The restriction was widely ignored, providing opportunities for the threat to prosecute to be used to extort money from landowners guilty of the crime of hunting the king’s deer on their own land.[ 8]
ANALOGIA DEI CERVI NEL PARCO DEL RE
A possible compromise might be to permit private prosecution only against government employees.