Some Realism About Realism

One commenter wrote this on the thread “The Right to Defy Criminal Demands: High-priced Duties to Protect”.

It might be detrimental to the ability of lawyers to make money at crime victims if a costly “duty” is not imposed to warn them. My belief is that few lawyers will agree to terms which limit their ability to collect compensation 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 have quoted above shows that. Businesses are interested in the limitation of tort liability, and many lawyers have worked as business defense counsel. Many people have supported and opposed tort reform, even lawyers. If we examine the tort law overall, which is mainly authored by former judges (participant in this article), there are quite a few rules that limit liability and some rules that enable liability.

It is not easy to be a lawyer. We should be realistic about such incentives, by all means—but really realistic.

(This title was shamelessly stolen from Karl Llewellyn who used it in an entirely different context.