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Thursday, May 03, 2018

"Portfolios of Beliefs" in Torts and Beyond

In PMR, I argue that our legal practices may best be described not by our beliefs in a particular legal theory but rather by the combination of beliefs we hold to varying degrees. I call these combinations "portfolios of beliefs." I focus on how these portfolios might better describe certain views about punishment and might even offer normatively appealing new options. In this post, I focus on some possible applications of portfolios of beliefs outside the criminal law, most of which are discussed in an appendix from which the following is adapted (with footnotes omitted):

There are many big debates in legal theory: Is tort law supposed to provide corrective justice or incentivize safety? Is contract law about fulfilling promises or promoting efficient economic activity? Should we interpret statutes based only on their plain meaning or consider the intentions of legislators? Should constitutions be understood in terms of their original meaning or can their meaning change over time? As with punishment theory, these questions can be addressed with portfolios of beliefs. A tort theorist might be “60% corrective justice-oriented, 40% deterrence-oriented,” and a constitutional law theorist might be “50% textualist, 50% purposivist.” Just as one can hold shares of different companies in an investment portfolio, one can hold different beliefs in varying proportions in a portfolio of beliefs. And just as stocks in an investment portfolio interact in ways that can increase or decrease total risk, so too can the constituents of a portfolio of beliefs.

In PMR, I suggested, retributivism alone might be impotent to punish but capable of doing so with a consequentialist backstop. In other words, our backup beliefs should sometimes influence our overall policy preferences. In criminal law, courts and legislatures frequently repeat their commitment to both retributivist and consequentialist goals—even though they conflict. Similar patterns of conflict are glossed over by other legal doctrines. Often, no single theory adequately captures our intuitions. At least sometimes, our  conflicting impulses can be explained by conscious or unconscious attempts to manage uncertainty. And at least sometimes, decision-making that reflects uncertainty will be superior to decision-making that blindly disregards it.

I will briefly mention three of many ways in which portfolios of beliefs could help us understand tort law. The first concerns the ultimate goal or goals of tort law. Some would say tort law should compensate wrongful injuries, some it should deter dangerous behavior, and some it should serve as a form of insurance. Some would pluralistically choose all or a subset of these goals. Each
approach advocates a different legal regime. Portfolio approaches yield still further options that have largely been unexplored. A person who is 70% confident tort law should solely concern compensation and 30% confident it should solely concern optimal deterrence may advocate different results than a pluralist who seeks tort awards of full compensation with modest upward and downward adjustments
in the direction of optimal deterrence.

Second, portfolios of beliefs can enlighten tort procedures and standards of proof. Like criminal law theorists, tort theorists must deal with uncertainty about both facts and values, and the risk-weighted severity of mistakes may influence their views about requisite burdens of proof. Tort law usually uses the rather low preponderance of the evidence standard, but in any particular case, the moral risks of one party losing might be substantially graver than the risks of the other side losing. Asymmetric moral uncertainty may sometimes explain the behavior of legal actors, and some might argue, potentially affect the way we ought to interpret rules of evidence and procedure in order to improve jury decisionmaking.

Finally, there is a puzzle as to why tort law focuses so much on negligence and only allows strict liability in limited circumstances. After all, we want to deter injuries even when they are non-negligent. Portfolios of beliefs suggest one answer: even though tort law is not generally thought to require fault, we may be reluctant to deprive people of their property rights when they faultlessly
cause injury. To the extent that we have moral uncertainty about taking the property of faultless people, we may prefer a negligence standard that generally requires fault but allows strict liability in rare contexts—as indeed we do—when the consequences of limiting tort liability to negligence are particularly serious.

Posted by Adam Kolber on May 3, 2018 at 10:44 AM | Permalink


Adam , you may find , great interest here , in that post hereby (Geistfeld on Cost-Benefit Analysis , in " TortsProf Blog " . The blog itself , very recommended ) here :


Posted by: El roam | May 8, 2018 10:50:28 AM

Excellent, thank you.

Posted by: Joseph | May 4, 2018 11:38:00 AM

Thanks for your thoughts, Joseph. At least in terms of the way scholars tend to write about the law, they rarely express their views in terms that we might call a portfolio of beliefs. Perhaps they sometimes say I believe theory X but if I'm wrong, I'm probably covered by theory Y as well. But I don't think that's the norm. (If anything, I think scholars are more likely to be pluralistic about values/theories, but that's a little different.) Moreover, even if one accepts the idea that we should hold various theories with various levels of confidence, there are still lots of questions about how these levels of confidence will or should apply in the real world.

As for the prior post not "[striking you] as representing how people really think about issues," I'd say that I'm not focused on the psychological perceptions of most people. I'm focused on the theorists who purport to justify punishment. So, for example, people who play roulette may not be calculating the odds of winning accurately, but statisticians should. Punishment theorists need to reach the right results and not fall back on how people typically perceive probabilities. Thanks again, and I hope you enjoy the article when you read it.

Posted by: Adam Kolber | May 3, 2018 6:54:10 PM

The concept of "portfolios of beliefs" strikes me as common sense (though I don't mean to say it isn't very useful to enunciate, as much common sense is these days). Are many people rule-bound in their thinking on these matters? (Myers-Briggs suggests an affirmative answer to me but it is a sincere query). To my mind, every theory has its limits and any percentages I would assign extend to those limits. So if I'm 80% textualist (merely illustrative) it's because I think that is the limit of the usefulness of that approach. Thus in practice, I am 100% confident that a textualist approach is 80% useful - which I think is different than being 80% confident that textualism is the right approach.

Your post "What is Moral Risk?" was also thought provoking, as I think your framework helps to answer thorny questions. But also the simple dichotomy of the meat-eating hypothetical doesn't ring true to me. Granted, it's meant to be an illustration and I'm not fighting its usefulness on that score but the framing as "confidence" in a position didn't strike me as representing how people really think about issues.

Per your hypothetical, I agree that if one thinks there is a 20% chance of great harm, it is wisest to avoid that course of action. If however, to borrow your hypothetical, I think eating meat is fine I'd say I have a 100% confidence in that. That isn't to say I have no moral reservations that, for example, extends to treatment of animals before their slaughter. It means I think meat eating is 80% (or whatever number) okay, with other beliefs weighing in. Most people in this country wouldn't eat cats and dogs. There are those who won't eat animals they perceive as possessing intelligence. There are those who won't eat animals capable of feeling pain. There definitely is a portfolio of beliefs at play. It is rare that a person thinks themself X% wrong.

I look forward to reading your article when I can in the near future.

Posted by: Joseph | May 3, 2018 4:54:25 PM

Just clarification to my last argument above concerning " predictability " :
It is correct sometimes , also when the wrongdoing could be even predictable. That has to do typically , with the level of probability , or the investment needed for preventing the damage or harm. Typically , one can think , of a case , where huge investment is needed ( or was needed ) for preventing probable harm , but , the whole occurrence or configuration , bears the equation of such huge resources needed , and such a low probability , that it is rendered , unreasonable by all means in the eyes of the legislator .

Posted by: El roam | May 3, 2018 12:11:04 PM

Typically , what the respectable author of the post calls " portfolios of beliefs " stems rather not from legal theories , as from the understanding , that each case , bears unique configuration of givens : parties , strategy , liability, circumstances , procedure , history , criminal record ,current social phenomenon and more . Each given case , may differ so much from previous and futures , that finally , that is what may cause that uncertainty , and shall generate the implication of various theories .

Finally , in tort law , the utmost central term , is always : " Predictability " not necessarily the results or the wrongdoing , but rather :

Could the wrongdoer , really predict the outcome of his action or negligence . In this regard , the judge then , needs to observe , not the result , but , in retrospect the decision making of the wrongdoers . We are typically , very impressed by the result , yet , it is not so obvious in the eyes of the lawmaker and judges . Otherwise , the whole society and public authorities , shall be corrupt , and dragged to calculate every step in advance , and endlessly invest resources , for preventing potential damages from occurring . Then , we shall reach , huge disproportion, between : cost and benefits .

You know what , short case , go for it , you may understand it very well :



Posted by: El roam | May 3, 2018 11:48:10 AM

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