Some Realism About Realism


A costly warning duty that can’t apply to victims of crime might limit the opportunities for criminal victims to be compensated by lawyers. My belief is that few lawyers will agree to something that would limit their ability to collect payouts from victims.

As a general matter, I appreciate the political economy / realism / cynicism point that people—including government officials and public commentators—often tend to act in their own self-interest (deliberately or subconsciously), or the interest of their professional or social tribe, even when they’re talking about the public interest. This is part of human nature.

However, it seems human nature is to generalize on such matters in ways that are inconsistent with facts. The comment that I quoted above shows that. Some lawyers have worked as business defense counsel, and these businesses do indeed want to limit tort liability. Many people have backed and opposed tort reform, even lawyers. We can also see a lot of rules to limit and enable liability when we take a look at tort law as a whole, made mostly by former judges.

The reality is that lawyers are not a homogeneous profession. We should be realistic about such incentives, by all means—but really realistic.

(This title was shamelessly taken from Karl Llewellyn. He used it in a slightly different context.