Document Type

Article

Publication Date

1993

Center/Program

Center for Contract and Economic Organization

Center/Program

Program in the Law and Economics of Capital Markets

Abstract

"[T]he laws have mistakes, and you can't go writing up a law for everything that you can imagine."'

"When you reach an equilibrium in biology you're dead."2

As we approach the Twenty-First Century, the signs of social disarray are everywhere. Social critics observe the breakdown of core structures-the nuclear family, schools, neighborhoods, and political groups. As these traditional social institutions have disintegrated, the law has expanded to fill the void. There are more laws, more lawyers, and more use of legal mechanisms to accomplish social goals than at any other time in history. The custodians and interpreters of the American legal system have become, whether they like it or not, the center of the universe.

Lawyers and legal academics are deeply conflicted about this newfound prominence. The legal profession is searching, even struggling, to define its role in a changing society. Much of this angst comes from a feeling that the legal community hasn't made much progress in resolving what I will term the "Justice Paradox." To understand the paradox, one must focus on the purposes of legal rules. Legal rules that determine liability and/or impose sanctions have both a distributive function and a behavior modification function. That is, the rules redistribute wealth or entitlements between the immediate parties to any particular dispute, and they also influence the behavior of future parties who may find themselves similarly situated. The justice of all legal rules must therefore be evaluated from two distinct perspectives: (1) Does the law accomplish justice between the parties to any particular dispute? We can call this "Present Justice"; and (2) Does the law appropriately regulate the conduct of other parties likely to have similar disputes in the future, making it less likely that similar misfortune will befall others who can learn from the experience of these litigants? We might call this "Future Justice."

The paradox arises from two propositions. First, both criteria must be satisfied in order to achieve a just outcome. Second, these two criteria of justice are usually intractably opposed. Simply put, you can't have it both ways. Thus, we aspire to a just society that satisfies the essential conditions of both Present and Future Justice, and yet we live in a world that often forces us to choose between one or the other.

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