Announcing remedies

Cornell Law Review

Volumn 97, Issue 4, 2012, Pages 753-800

  Bray, Samuel L ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84865054282     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (182)

1. See, e.g., Randall R. Bovbjerg et al., Valuing Life and Limb in Tort: Scheduling "Pain and Suffering," 83 NW. U. L. REV. 908, 938 (1989).
2. See Kathryn E. Spier, Settlement Bargaining and the Design of Damage Awards, 10 J.L. ECON. & ORG. 84, 86-94 (1994).
3. See Louis Kaplow & Steven Shavell, Accuracy in the Assessment of Damages, 39 J.L. & ECON. 191, 192-93 (1996).
4. See, e.g., Michael E. Chaplin, What's So Fair About the Fair and Accurate Credit Transactions Act, 92 MARQ. L. REV. 307 (2008) (critiquing statutory damages under the Fair and Accurate Credit Transactions Act)
5. Pamela Samuelson & Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform, 51 WM. & MARY L. REV. 439 (2009) (critiquing statutory damages in copyright law)
6. Sheila B. Scheuerman, Due Process Forgotten: The Problem of Statutory Damages and Class Actions, 74 MO. L. REV. 103 (2009) (arguing that there can be a lack of due process when statutory damages are available in class actions).
7. Margaret Levi, A State of Trust, in TRUST AND GOVERNANCE 77, 90-91 (Valerie Braithwaite & Margaret Levi eds., 1998).
8. See Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 785-86 (2007) (arguing that the process of obtaining hedonic damages for disability can thwart hedonic adaptation).
9. This point draws on Bob Cooter's distinction between prices and sanctions. See Robert Cooter, Prices and Sanctions, 84 COLUM. L. REV. 1523 (1984).
10. See Douglas Laycock, How Remedies Became a Field: A History, 27 REV. LITIG. 161, 165 (2008) (defining "remedies" as what "the court can do for you if you win" or what it "can do to you if you lose"). The definition, however, is contestable. See infra note 170.
11. The standard contemporary reference is Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857 (1999) ("[R]ights and remedies are inextricably intertwined.").
12. For earlier discussions, see MARSILIUS OF PADUA, DEFENSOR PACIS 189 (Alan Gewirth trans., 1956) (1324)
13. JOHN AUSTIN, 2 LECTURES ON JURISPRUDENCE OR THE PHILOSOPHY OF POSITIVE LAW 767-68 (Robert Campbell ed., 5th ed. 1885)
14. O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 458 (1897).
15. Although not developed in this Article, there can also be private ordering in the spirit of an announced remedy. In contract law, the paradigmatic example is liquidated damages, which are like an announced remedy that the parties have chosen for themselves. The analogy can be taken too far, however. Liquidated damages are determined in advance, but they are also customized to the parties' particular circumstances in a way that general legislation ordinarily cannot be. This unusual combination of announcing and customization is critical for the modern justifications for supracompensatory liquidated damages. E.g., Aaron S. Edlin & Alan Schwartz, Optimal Penalties in Contracts, 78 CHI.-KENT L. REV. 33 (2003) (showing that a liquidated-damages clause can encourage efficient twosided investment). In tort law, too, there is private ordering in the spirit of announced remedies.
16. See Nora Freeman Engstrom, Run-of-the-Mill Justice, 22 GEO. J. LEGAL ETHICS 1485, 1532-34 (2009) (describing the personal-injury schedules used by "settlement mills")
17. Samuel Issacharoff & John Fabian Witt, The Inevitability of Aggregate Settlement: An Institutional Account of American Tort Law, 57 VAND. L. REV. 1571 (2004) (describing devices for aggregate settlement)
18. cf. Mark Koyama, Prosecution Associations in Industrial Revolution England: Private Providers of Public Goods?, 41 J. LEGAL STUD. (forthcoming 2012) (describing the use of reward schedules by private prosecution associations in early nineteenth-century England).
19. Cf. Claire Grant, Promulgation and the Law, 2 INT'L J.L. IN CONTEXT 321, 325 (2006) (defining "publication" of laws as "the activity of taking steps to attract people's attention to laws"). As is common in the jurisprudence literature on the publication and promulgation of laws, Grant emphasizes substantive rules, not remedies. See id. at 321-30.
20. One example is expectation damages in co tract law. Another example is the set of principles that courts use to determine the sanction for parties and counsel under Rule 11 of the FEDERAL RULES OF CIVIL PROCEDURE. See FED. R. CIV. P. 11(c).
21. See, e.g., Jennifer H. Arlen, Should Defendants' Wealth Matter?, 21 J. LEGAL STUD. 413 (1992) (wealth)
22. Lucian Arye Bebchuk & Louis Kaplow, Optimal Sanctions and Differences in Individuals' Likelihood of Avoiding Detection, 13 INT'L REV. L. & ECON. 217 (1993) (likelihood of apprehension)
23. Adam J. Kolber, The Subjective Experience of Punishment, 109 COLUM. L. REV. 182 (2009) (experience of punishment)
24. A. Mitchell Polinsky, Risk Sharing Through Breach of Contract Remedies, 12 J. LEGAL STUD. 427, 433-36 (1983) (risk aversion)
25. John T. Scholz & Neil Pinney, Duty, Fear, and Tax Compliance: The Heuristic Basis of Citizenship Behavior, 39 AM. J. POL. SCI. 490 (1995) (sense of duty to obey the law).
26. Richard Craswell, Deterrence and Damages: The Multiplier Principle and Its Alternatives, 97 MICH. L. REV. 2185, 2205 (1999). Optimal-deterrence theory also suggests caveats. On administrative costs
27. see Arlen, supra note 25, at 427-28. On institutional capacity, see Thomas S. Ulen, The Efficiency of Specific Performance: Toward a Unified Theory of Contract Remedies, 83 MICH. L. REV. 341, 384 (1984).
28. See JOSEPH RAZ, The Rule of Law and Its Virtue, in THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 210, 225-26 (2d ed. 2009).
29. See Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System-and Why Not?, 140 U. PA. L. REV. 1147, 1218-21 (1992).
30. See, e.g., Bovbjerg et al., supra note 1; Mark Geistfeld, Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Nonmonetary Injuries, 83 CALIF. L. REV. 773, 781-83 (1995)
31. Stephan Landsman, Introduction, 55 DEPAUL L. REV. 249, 249-52 (2006) (introducing the symposium Who Feels Their Pain? The Challenge of Noneconomic Damages in Civil Litigation)
32. Frederick S. Levin, Note, Pain and Suffering Guidelines: A Cure for Damages Measurement "Anomie," 22 U. MICH. J.L. REFORM 303, 304-11 (1989).
33. See, e.g., Joni Hersch & W. Kip Viscusi, Punitive Damages: How Judges and Juries Perform, 33 J. LEGAL STUD. 1 (2004) (finding arbitrariness and unpredictability in jury-determined punitive damage awards)
34. Cass R. Sunstein et al., Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 YALE L.J. 2071 (1998) (same).
35. But see Theodore Eisenberg et al., Juries, Judges, and Punitive Damages: An Empirical Study, 87 CORNELL L. REV. 743 (2002) (finding a similar ratio between compensatory and punitive damages in determinations by judges and juries). For surveys of the empirical debate
36. See Daniel E. Ho, Comment, Reconciling Punitive Damages Evidence, 166 J. INSTITUTIONAL & THEORETICAL ECON. 27 (2010)
37. Catherine M. Sharkey, The Exxon Valdez Litigation Marathon: A Window on Punitive Damages, 7 U. ST. THOMAS L.J. 25, 36-38 & nn.54-57 (2009).
38. See Stanley Ingber, Rethinking Intangible Injuries: A Focus on Remedy, 73 CALIF. L. REV. 772, 778-819 (1985)
39. Robert L. Rabin, Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible Loss, 55 DEPAUL L. REV. 359, 373-77 (2006).
40. For these harms, sometimes a court can offer only "random justice held with things half-known, / with restitution if things come to that." GEOFFREY HILL, Offertorium: December 2002, in WITHOUT TITLE 22, 22 (2006).
41. See Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 CALIF. L. REV. 691, 711-19 (1986). Or, to take another example, false imprisonment can be a denial of the liberty of all citizens-not merely of the victim.
42. See, e.g., John C. P. Goldberg, Two Conceptions of Tort Damages: Fair v. Full Compensation, 55 DEPAUL L. REV. 435, 459-60 (2006)
43. Discussing Huckle v. Money, (1763) 95 Eng. Rep. 768 (K.B.) 769; 2 Wils. 206, 207, an eighteenth-century English case that upheld a massive award of damages when the king's agents falsely imprisoned a printer with little or no personal loss because the act was a tyrannical affront to "the liberty of the kingdom".
44. See generally TYLER COWEN, THE GREAT STAGNATION: HOW AMERICA ATE ALL THE LOW-HANGING FRUIT OF MODERN HISTORY, GOT SICK, AND WILL (EVENTUALLY) FEEL BETTER (2011) (describing the rise of industries, technologies, and activities for which reliable judgments of value are not possible, including many uses of the internet). After all, there is no reason to think that in any particular legal system there will be constant proportions, over time, of more determinate and less determinate harms.
45. See Rabin, supra note 31, at 365. See generally WILLIAM IAN MILLER, EYE FOR AN EYE 20 (2006) ("The worry about how hard it is to come up with equivalences is at the core of primitive systems of justice, and it is hardly something we have adequately resolved today.")
46. MARGARET JANE RADIN, CONTESTED COMMODITIES 193-96 (1996) (noting tort law's ambition to rectify nonpecuniary harm and its recognition that doing so is impossible).
47. See Ronen Avraham, Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for Change, 100 NW. U. L. REV. 87, 94-96 & n.43 (2006) (developing this point, albeit with qualifications, and concluding that "the optimal provision of pain-and-suffering damages should combine predictability with optimal mean or median of awards, to preserve deterrence")
48. See Taliferro v. Augle, 757 F.2d 157, 162 (7th Cir. 1985) (Posner, J.) ("A plaintiff is not permitted to throw himself on the generosity of the jury. If he wants damages, he must prove them.").
49. Joel D. Lieberman, Head over the Heart or Heart over the Head? Cognitive Experiential Self-Theory and Extralegal Heuristics in Juror Decision Making, 32 J. APPLIED SOC. PSYCHOL. 2526, 2536, 2538-39, 2545-46 (2002) (classifying "loss of income, loss of companionship, and punitive damages" as "subjective damages")
50. Andrew J. Wistrich et al., Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding, 153 U. PA. L. REV. 1251, 1328 (2005) (expressing particular concern about inadmissible evidence when "damages . . . are inherently difficult to quantify").
51. see Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1688 (1976)
52. Cass R. Sunstein, Problems with Rules, 83 CALIF. L. REV. 953, 976 (1995).
53. Given that the experimental and nonexperimental approaches have independent methodological challenges, it is noteworthy that they both support the effects described in the text. A similar observation is made in Tara L. Mitchell et al., Racial Bias in Mock Juror Decision-Making: A Meta-Analytic Review of Defendant Treatment, 29 LAW & HUM. BEHAV. 621, 633 (2005).
54. On the difficulty of announcing in the criminal context, see infra note 171. 45 Justin J. Gunnell & Stephen J. Ceci, When Emotionality Trumps Reason: A Study of Individual Processing Style and Juror Bias, 28 BEHAV. SCI. & L. 850 (2010).
55. Edward L. Glaeser & Bruce Sacerdote, Sentencing in Homicide Cases and the Role of Vengeance, 32 J. LEGAL STUD. 363, 364 (2003).
56. See, e.g., Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. PA. L. REV. 463, 464-66 (1998)
57. Jane Goodman et al., Money, Sex, and Death: Gender Bias in Wrongful Death Damage Awards, 25 LAW & SOC'Y REV. 263, 281-82 (1991)
58. Lieberman, supra note 39; see also W. Jonathan Cardi, The Search for Racial Justice in Tort Law, in CRITICAL RACE REALISM: INTERSECTIONS OF PSYCHOLOGY, RACE, AND LAW 115, 120-21 (Gregory S. Parks et al. eds., 2008) (reviewing literature and noting its limitations).
59. AUDREY CHIN & MARK A. PETERSON, DEEP POCKETS, EMPTY POCKETS: WHO WINS IN COOK COUNTY JURY TRIALS 38-39 (1985).
60. See Claudia Goldin & Cecilia Rouse, Orchestrating Impartiality: The Impact of "Blind" Auditions on Female Musicians, 90 AM. ECON. REV. 715, 715-16, 721-22 (2000).
61. A familiar example from criminal law is the crack/powder cocaine sentencing disparity. See generally Briton K. Nelson, Comment, Adding Fuel to the Fire: United States v.
62. Booker and the Crack Versus Powder Cocaine Sentencing Disparity, 40 U. RICH. L. REV. 1161 (2006).
63. Compare, again in the criminal context, Bernard E. Harcourt, Rethinking Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature, and of Criminal Profiling More Generally, 71 U. CHI. L. REV. 1275, 1329-35 (2004) (describing a "ratchet effect" from racial profiling that "disproportionately distributes criminal records and criminal justice contacts").
64. Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72 U. CHI. L. REV. 537, 541, 586, 595 (2005).
65. See ELINOR OSTROM, UNDERSTANDING INSTITUTIONAL DIVERSITY 79-80 (2005).
66. Id. at 227-28, 265-67. A study of 178 forest user groups in twelve countries found that "regular monitoring by a local group is more important . . . in enhancing forest conditions" than are other variables, such as the "group's social capital, the group's dependence o[n] forest resources, and whether the group was formally organized or not." Id. at 266. On the importance of punishment for cooperation in an experimental setting, see Ernst Fehr & Simon Gachter, Cooperation and Punishment in Public Goods Experiments, 90 AM. ECON. REV. 980, 980-81 (2000).
67. see also ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 44 (1990).
68. OSTROM, supra note 59, at 265, 267. 63 A stylized account of these differences is found in Elinor Ostrom, Toward a Behavioral Theory Linking Trust, Reciprocity, and Reputation, in TRUST AND RECIPROCITY: INTERDISCIPLINARY LESSONS FROM EXPERIMENTAL RESEARCH 19, 55-61
69. MARGARET LEVI, OF RULE AND REVENUE 52 (1988).
70. H.L.A. HART, THE CONCEPT OF LAW 198 (2d ed. 1994). As Levi says, "The importance of deterrence is that it persuades taxpayers that others are being compelled to pay their share." LEVI, supra note 64, at 54.
71. For an evolutionary model of coordinated punish- ment that includes contingent cooperators, see Robert Boyd et al., Coordinated Punishment of Defectors Sustains Cooperation and Can Proliferate When Rare, 328 SCIENCE 617 (2010).
72. see also KAREN S. COOK ET AL., COOPERATION WITHOUT TRUST? 161 (2005) (describing how judicial interpretation of Australian tax rules to the benefit of the wealthy led to scandals that were followed by "increases in tax evasion by those who felt the tax agencies and laws were discriminatory and unjust")
73. Joseph D. Beams et al., An Experiment Testing the Determinants of Non-Compliance with Insider Trading Laws, 45 J. BUS. ETHICS 309 (2003) (finding that experimental subjects were more likely to engage in insider trading if they thought that other people would trade on the same information)
74. cf. F.M. CORNFORD, MICROCOSMOGRAPHIA ACADEMICA: BEING A GUIDE FOR THE YOUNG ACADEMIC POLITICIAN 20 (1908) ("The great majority would sooner behave honestly than not. The reason why they do not . . . is that they are afraid that others will not; and the others do not because they are afraid that they will not.").
75. Nathan S. Chapman, Law Asks for Trust, 85 ST. JOHN'S L. REV. 521, 543 (2011) (noting that "law inherently asks the subject to trust the ruler").
76. These two dimensions are sometimes described as "vertical trust" and "horizontal trust." E.g., John T. Scholz & Mark Lubell, Trust and Taxpaying: Testing the Heuristic Approach to Collective Action, 42 AM. J. POL. SCI. 398, 399-400 (1998). That description is avoided here because "trust" is a freighted and contested term, and the debates over its meaning are not directly relevant.
77. On precommitment devices, see generally JON ELSTER, ULYSSES AND THE SIRENS: STUDIES IN RATIONALITY AND IRRATIONALITY (rev. ed. 1984)
78. JON ELSTER, ULYSSES UNBOUND: STUDIES IN RATIONALITY PRECOMMITMENT AND CONSTRAINTS (2000) [hereinafter ELSTER, ULYSSES UNBOUND].
79. The loci classici for the distinction between these two equalities are PLATO, THE LAWS bk. VI, 756e-758a, at 142-44
80. Thomas L. Pangle trans., Basic Books, Inc. 1980) (c. 360 B.C.E.), and ARISTOTLE, NICOMACHEAN ETHICS bk. V, ch. 2, 1130b-1132b, at 1005-10 (Richard McKeon ed., W.D. Ross trans., Modern Library 2001) (c. 350 B.C.E.).
81. Cf. Kent Greenawalt, How Empty Is the Idea of Equality?, 83 COLUM. L. REV. 1167, 1180 (1983) ("A sense that some people deserve better or worse treatment than others is fairly common, but rarely is that sense reducible to a quantitative formulation; simple equality has an intuitive appeal as a proper proportion that does not often exist for other explicit proportions.").
82. On the idea that people are more likely to comply with legal rules when they think the legal process is fair, see generally TOM R. TYLER & YUEN J. HUO, TRUST IN THE LAW: ENCOURAGING PUBLIC COOPERATION WITH THE POLICE AND COURTS (2002)
83. TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990). Or the public might respond in exactly the opposite way, suspecting that discretion will shift from the remedies to the merits, and the game will still be rigged. In predicting the reaction, as discussed below, it matters how cynical the public is.
84. This may explain Ostrom's emphasis on remedial flexibility. See OSTROM, supra note 59, at 98, 186.
85. Peter T. Leeson, An-arrgh-chy: The Law and Economics of Pirate Organization, 115 J. POL. ECON. 1049, 1075 (2007).
86. Bagenstos & Schlanger, supra note 6.
87. Id. But see Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. REV. L. & SOC. CHANGE 535, 555-57 (1987-88) (offering a more sanguine account of how people reconcile self-empowerment and the rhetorical demands of claiming disabled status)
88. cf. Robert J. MacCoun, Voice, Control, and Belonging: The Double- Edged Sword of Procedural Fairness, 2005 ANN. REV. L. SOC. SCI. 171 (showing that people desire voice yet arguing that this desire exposes them to manipulation). On the tension between storytelling and resistance
89. see Elizabeth F. Emens, Shape Stops Story, 15 NARRATIVE 124, 129-31 (2007) (describing "resistance" as an attorney's protection of "her client's right not to tell her story").
90. See Bagenstos & Schlanger, supra note 6, at 785-87
91. Martha Minow, Surviving Victim Talk, 40 UCLA L. REV. 1411, 1429 (1993)
92. Cf. ROBERT JERVIS, SYSTEM EFFECTS: COMPLEXITY IN POLITICAL AND SOCIAL LIFE 147-49 (1997) (discussing the per se reinforcing nature of information and descriptions, whether accurate or not).
93. THEODORE DREISER, SISTER CARRIE 193 (Modern Library 1997) (1900).
94. See, e.g., Ark. Dep't of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 273 (2006) ("[The tort victim] claimed damages not only for past medical costs, but also for permanent physical injury; future medical expenses; past and future pain, suffering, and mental conseanguish; past loss of earnings and working time; and permanent impairment of the ability to earn in the future.").
95. See 1 ROBERT D. SACK, SACK ON DEFAMATION: LIBEL, SLANDER, AND RELATED PROBLEMS § 10:1 (4th ed. 2011) ("Rarely do damages for libel or slander consist in any significant part of compensation for measurable pecuniary loss."); id. § 10:3:2 ("[A]ctual pecuniary loss resulting from defamation is typically difficult to establish.").
96. Id. § 10:5:1 & n.200 (noting that successful plaintiffs have produced these kinds of evidence-the words "marital stress" are quoted from Draghetti v. Chmielewski, 626 N.E.2d 862, 868 (Mass. 1994), where the plaintiff also suffered "physical symptoms").
97. See Minow, supra note 80 (arguing that "victim talk" has a rebounding quality).
98. See SACK, supra note 84, § 10:5:1 n.207.
99. On remedies and social consensus, see infra notes 113-15 and accompanying text. 90 See generally Omri Ben-Shahar & Lisa Bernstein, The Secrecy Interest in Contract Law, 109 YALE L.J. 1885, 1885-90 (2000).
100. Id. at 1886; cf. Snepp v. United States, 444 U.S. 507, 514 (1980) (per curiam) (concluding that punitive damages would be a deficient remedy in a case where a former CIA agent was publishing confidential information because proving damages "might force the Government to disclose some of the very confidences" that were at issue).
101. 93 See Spier, supra note 2, at 85.
102. See Kaplow & Shavell, supra note 3.
103. See id. at 201. For extensions of this analysis, see Robert A. Mikos, Accuracy in Criminal Sanctions, in RESEARCH HANDBOOK ON THE ECONOMICS OF CRIMINAL LAW (Alon Harel & Keith Hylton eds.) (forthcoming 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1598436
104. Amy Whritenour Ando & Wallapak Polasub, Envelope Backs or the Gold Standard? Choosing the Accuracy of Damage Assessment Methods, 82 LAND ECON. 424 (2006).
105. Compare the experiment two decades ago, in asbestos litigation, of trying a handful of representative claims and using the results to establish valuations for a much larger set of claims. See Issacharoff & Witt, supra note 15, at 1626. 98 The tailoring experiment could encourage moral deliberations about the appropriate remedy in keeping with Seana Shiffrin's argument for the deliberative virtue of standards. See Seana Valentine Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog, 123 HARV. L. REV. 1214, 1222 (2010) (arguing that the uncertainty of standards can be valuable because it requires citizens to grapple with moral concepts).
106. But cf. LON L. FULLER, THE MORALITY OF LAW 51 (rev. ed. 1969) (arguing that publishing the law uniquely allows it to be "subject to public criticism").
107. See TIMOTHY A.O. ENDICOTT, VAGUENESS IN LAW 185 (2000) (finding a consensus that the "organizing principle" of the rule of law's requirements is that "the law must be capable of guiding the behaviour of its subjects" (quoting RAZ, supra note 27, at 214)). Some have argued that predictability matters less for remedies than for substantive rules.
108. See, e.g., Andrei Marmor, Should Like Cases Be Treated Alike?, 11 LEGAL THEORY 27, 33-34 (2005) (arguing that allowing potential criminals to accurately predict their punishment would probably not enhance the deterrent effect of the criminal system)
109. Shiffrin, supra note 98, at 1241-43 (arguing that people have a legitimate interest in sufficient notice to plan their conduct but not in predicting specific remedies). Such arguments may have merit in criminal and quasi-criminal contexts, but they have less force for ordinary civil violations, especially in situations where the harm to which the remedy corresponds is radically indeterminate. That is, it can be good for people to know not only that the law proscribes certain conduct, but also the intensity with which it does so (as expressed through the choice and quantum of remedy). Cf. infra note 114 and accompanying text (noting that it is more difficult to intuit a remedy than a substantive rule).
110. See, e.g., Kevin Lane Keller & Richard Staelin, Effects of Quality and Quantity of Information on Decision Effectiveness, 14 J. CONSUMER RES. 200, 200 (1987). This literature examines the processing of information for a different decision-not a citizen's decision to comply with a legal rule, but a consumer's choice of goods. Nevertheless, the need to gather and process information is common to both decisions.
111. See id. at 211; see also Nicholas H. Lurie, Decision Making in Information-Rich Environments: The Role of Information Structure, 30 J. CONSUMER RES. 473 (2004) (adding analysis of information structure and, though contradicting Keller and Staelin on one point, supporting the thesis that a higher quantity of information can impair decision making and increase its costs).
112. See Keller & Staelin, supra note 101, at 211.
113. Cf. Robert J. MacCoun, Media Reporting of Jury Verdicts: Is the Tail (of the Distribution) Wagging the Dog?, 55 DEPAUL L. REV. 539, 540 (2006) ("Yet even today, there is no simple way to statistically forecast the expected value of any given case-the published data are inevitably dated, and they do not readily permit one to project the combined effects of case type, jurisdiction, and injury characteristics, much less a host of other potentially relevant factors not coded by the researchers.").
114. The literature on legal advice is diverse in its conclusions and methods. Good starting points are Louis Kaplow & Steven Shavell, Private Versus Socially Optimal Provision of Ex Ante Legal Advice, 8
115. J.L. ECON. & ORG. 306 (1992)
116. William H. Simon, The Market for Bad Legal Advice: Academic Professional Responsibility Consulting as an Example, 60 STAN. L. REV. 1555 (2008).
117. Little is known about bloggers' perceptions. As of November 2009, there were "109 pending or resolved [defamation] cases against bloggers." Kaitlin M. Gurney, Comment, MySpace, Your Reputation: A Call to Change Libel Laws for Juveniles Using Social Networking Sites, 82 TEMP. L. REV. 241, 255-56 (2009) (noting also "an $11.3 million verdict against a Florida woman in 2006 stemming from defamatory statements she posted on an online bulletin board"). A Twitter defamation case recently settled for nearly half a million dollars.
118. See Matthew Perpetua, Courtney Love Settles Twitter Defamation Suit For $430,000, ROLLING STONE (Mar. 3, 2011, 6:35 PM), http://www.rollingstone. com/music/news/courtney-love-settlestwitter- defamation-suit-for-430-000- 20110303. It is worth noting, though, that media cover age of outlier verdicts may eventually lead to bloggers' overestimating the damages for defamatory posts.
119. See MacCoun, supra note 104, at 558-61.
120. Cf. RICHARD B. MCKENZIE, PREDICTABLY RATIONAL?: IN SEARCH OF DEFENSES FOR RATIONAL BEHAVIOR IN ECONOMICS, at xiv-xv (2010) (advancing this competitive-pressure argument for the rationality assumption in neoclassical economics).
121. See generally Omri Ben-Shahar, Playing Without a Rulebook: Optimal Enforcement When Individuals Learn the Penalty Only by Committing the Crime, 17 INT'L REV. L. & ECON. 409 (1997) (showing that apprehension can give criminals opportunities to learn about enforcement policies).
122. On returns to scale from information, see Kenneth J. Arrow, The Economics of Information: An Exposition, 23 EMPIRICA 119, 123-25 (1996).
123. See Arrow, supra note 112.
124. On the importance of audience on information costs, see generally Henry E. Smith, The Language of Property: Form, Context, and Audience, 55 STAN. L. REV. 1105 (2003).
125. BECCARIA, ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS 17 (Richard Bellamy ed., Richard Davies et al. trans., Cambridge Univ. Press 1995) (1764). People may be deterred more by certain remedies than by uncertain ones of equal expected value; supporting this conclusion are behavioral findings about salience and prospect theory (with its claim that people are generally risk-averse with respect to gains but risk-seeking with respect to losses).
126. See, e.g., Amos Tversky & Daniel Kahneman, Advances in Prospect Theory: Cumulative Representation of Uncertainty, 5 J. RISK & UNCERTAINTY 297 (1992) (updating prospect theory). Alternatively, people may be more deterred by uncertain remedies; supporting this conclusion are findings of uncertainty aversion and the various qualifications to prospect theory (e.g., options in framing, different results for low-probability risks, and the effect of decision-maker expertise).
127. See, e.g., John A. List, Neoclassical Theory Versus Prospect Theory: Evidence from the Marketplace, 72 ECONOMETRICA 615, 615, 624 (2004) (finding prospect theory less applicable for experienced decision makers). The argument in this Article does not depend on any view of whether people are usually more deterred by certain or uncertain remedies. For a recent survey of the empirical evidence on deterrence and certainty, in the context of the criminal law.
128. see Steven D. Levitt & Thomas J. Miles, Empirical Study of Criminal Punishment, in 1 HANDBOOK OF LAW AND ECONOMICS 455 (A. Mitchell Polinsky & Steven Shavell eds., 2007)
129. see also Francesco Drago et al., The Deterrent Effects of Prison: Evidence from a Natural Experiment, 117 J. POL. ECON. 257 (2009) (finding evidence of deterrence when prisoners were released early and knew the exact quantum of time that would be added to their prison sentences if they reoffended).
130. Compare Dick Craswell's point that "a reform that seems obviously unsound from the standpoint of one route to optimal deterrence could be perfectly sound from the standpoint of another." Craswell, supra note 26, at 2210.
131. Cooter, supra note 7, at 1533. Cooter's piece is usually invoked for the dichotomy between prices and sanctions. For a normative theory about announcing, what is more useful is Cooter's distinction between the situations in which prices and sanctions should be used. Id.
132. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169, 180 (1968). Since Becker's article began the modern turn toward optimal deterrence, other scholars have offered many qualifications of its argument for maximal fines.
133. E.g., Steven Shavell, A Note on Marginal Deterrence, 12 INT'L REV. L. & ECON. 345, 346-47 (1992). The high sanction referenced in the text would be "almost Beckeresque"
134. ELSTER, ULYSSES UNBOUND, supra note 70, at 34-45. This failure to give a high sanction could also be considered weakness of will. See id. at 9.
135. See Kennedy, supra note 42, at 1696 ("Death is likely to be an ineffective penalty for theft.")
136. see also Douglas Hay, Property, Authority, and the Criminal Law, in ALBION'S FATAL TREE 17, 22-23 (Douglas Hay et al. eds., 1975) (noting that the death penalty was prescribed for many property crimes in eighteenth-century England but was applied only rarely).
137. Id. § 3403(a); L. RICHARD FISCHER, THE LAW OF FINANCIAL PRIVACY: A COMPLIANCE GUIDE 2.01, at 2-3 (2d ed. 1991).
138. The certificate-of-compliance provision has been criticized by one commentator for how it "significantly limits the bank customer's ability to obtain relief for unauthorized disclosures." Michael Rogovin, Privacy of Financial Records, 1986 ANN. SURV. AM. L. 587, 591. But that provision is critical to the remedial scheme: it limits the prohibition to conduct that legal decision makers know is not socially optimal and thus makes it appropriate to impose a high sanction.
139. E.g., Complaint at 16-21, Stein v. Bank of Am. Corp., No. 1:11-cv-01400 (D.D.C. Aug. 2, 2011), 2011 WL 3323841. The statute also authorizes punitive damages and actual damages.
140. Note how different this normative analysis is from the rules/standards literature on substantive legal requirements. Louis Kaplow has written that the most important normative consideration in choosing a rule or a standard is "the frequency with which a law will govern conduct" (with greater frequency indicating a need for rules). Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 621 (1992). In contrast, for the precommitment function of announcing, the frequency of the underlying conduct is at best a tertiary consideration, and in the Right to Financial Privacy Act example above, the remedy is announced in order to ensure that the incidence of the underlying conduct approaches zero.
141. For the generative text for the "Holmesian bad man," see Holmes, supra note 14, at 459-61.
142. U.S.C. § 1681n(a)(1)(A); see also Scheuerman, supra note 4, at 105.
143. Scheuerman, supra note 4, at 105-06 ("When pursued as a nationwide or statewide class action, the statutory damages [under the Fair and Accurate Credit Transactions Act] create devastating liability that would put the defendant out of business simply for failing to redact information from a retail receipt.").
144. On the intersection of statutory damages and class actions, see id. at 107-15, and Catherine M. Sharkey, Federal Incursions and State Defiance: Punitive Damages in the Wake of Philip Morris v. Williams, 46 WILLAMETTE L. REV. 449, 471 n.104 (2010).
145. See Chaplin, supra note 4
146. Scheuerman, supra note 4.
147. For similar criticisms of statu- tory damages for copyright infringement, see Samuelson & Wheatland, supra note 4.
148. Fed- eral courts have traditionally reviewed statutory damage awards under a highly deferential standard. See St. Louis, Iron Mountain & S. Ry. Co. v. Williams, 251 U.S. 63, 67 (1919) (stating that the statutory damage award must be "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable" to justify deviation from it). As a general rule, moving to a more vigorous form of constitutional review (or, for that matter, more frequent use of remittitur) would make it difficult for announced remedies to serve any of the three functions described in this Article. Administrative costs would increase both for litigants and the public because parties would brief and judges would decide another set of questions in every case. Information costs would go up because it would be harder for potential violators to predict what the remedy would ultimately be.
149. See Ronen Avraham & Alvaro Bustos, The Unexpected Effects of Caps on Non-Economic Damages, 30 INT'L REV. L. & ECON. 291 (2010). And precommitment would be impossible because even if legal decision makers tried to commit themselves to a high sanction at time 1, the commitment could be unraveled by courts at time 2.
150. Or to put it still another way, even if the announced remedy was set at the right level for the median case, the number and magnitude of Type 1 (overcompensation for a minor injury) and Type 2 (undercompensation for a major injury) errors would lead to serious deterrence problems. See Avraham, supra note 35, at 102 & n.74.
151. See 2 HENRY ST. GEORGE TUCKER, COMMENTARIES ON THE LAWS OF VIRGINIA 408 (Richmond, Shepherd & Colin 3d ed. 1846) (quoting a letter from Lord Hardwicke to Lord Kaimes for the proposition that because "fraud is infinite," no one could ever "lay down as a general proposition what constitutes fraud, or establish any invariable rule which should define it").
152. For an insightful discussion of these tradeoffs in the context of willful breaches of contract, see Richard Craswell, When Is a Willful Breach "Willful"? The Link Between Definitions and Damages, 107 MICH. L. REV. 1501 (2009).
153. See ALAN WATSON, LAW MAKING IN THE LATER ROMAN REPUBLIC 46-49 (1974).
154. Id. at 46. The primary source is 3 AULUS GELLIUS, THE ATTIC NIGHTS, bk. XX.1.13, at 410-13 (John C. Rolfe trans., rev. ed. 1978) (c. 165 A.D.).
155. On analogues in other ancient legal systems, see generally Martha T. Roth, Mesopotamian Legal Traditions and the Laws of Hammurabi, 71 CHI.-KENT L. REV. 13 (1995).
156. See GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 64-68 (1982) (outlining the complexities and tradeoffs of automatic updating)
157. see also KEITH S. ROSENN, LAW AND INFLATION 247-50 (1982) (making the case for automatic updating through an example of a negligence victim receiving meager compensation due to a damage-limitation provision that did not adjust for inflation). See generally
158. Jim Chen, The Price of Macroeconomic Imprecision: How Should the Law Measure Inflation?, 54 HASTINGS L.J. 1375 (2003) (suggesting ways courts can address inflation). Note that although announced remedies are especially vulnerable to inflation (or deflation), similar problems can arise when remedies are decided case by case. Compare
159. Melvin M. Belli, The Adequate Award, 39 CALIF. L. REV. 1, 3-5 (1951) (decrying the fact that damage awards had not kept up with the cost of living)
160. Deborah R. Hensler, Jurors in the Material World: Putting Tort Verdicts in Their Social Context, 13 ROGER WILLIAMS U. L. REV. 8, 19 (2008) (noting growth in size of damage awards, even after inflation is taken into account).
161. Uri Gneezy & Aldo Rustichini, A Fine Is a Price, 29 J. LEGAL STUD. 1 (2000).
162. The foundational work on system effects is JERVIS, supra note 80, at 147-49.
163. For application to legal analysis, see Adrian Vermeule, The Supreme Court, 2008 Term-Foreword: System Effects and the Constitution, 123 HARV. L. REV. 4 (2009). Vermeule offers this definition: "A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one." Id. at 6.
164. See Daniel Kahneman et al., Shared Outrage, Erratic Awards, in PUNITIVE DAMAGES: HOW JURIES DECIDE 31, 34-36 (Cass R. Sunstein et al. eds., 2002)
165. Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 MINN. L. REV. 1829, 1832 (2007)
166. For a nuanced review of this literature, see Avraham, supra note 35, at 90-97. 165
167. See, e.g., Bovbjerg et al., supra note 1, at 925, 975 (proposing the scheduling of noneconomic damages, assuaging concerns about rigidity with the optional use of a range instead of a mandatory point or with a separate administrative process for outliers, and noting the analogy to criminal sentencing)
168. Sunstein et al., supra note 30, at 2122 ("In the criminal law . . . the determination is made by the judge subject to the Sentencing Guidelines. Why would not the same approach make sense for punitive awards?")
169. Wistrich et al., supra note 39, 1328-29 (suggesting advisory guidelines, especially for damages that are "inherently difficult to quantify")
170. Levin, supra note 29, at 303-04 (arguing for pain-and- suffering guidelines modeled on state criminal sentencing guidelines)
171. see also Ronald J. Allen et al., An External Perspective on the Nature of Noneconomic Compensatory Damages and Their Regulation, 56 DEPAUL L. REV. 1249, 1257, 1275 (2007) (advocating legislative schedules, either exact amounts or ranges, which would be "modeled, in part, after sentencing guidelines used in the states").
172. Bob Rabin, who does not advocate such an approach, has described the "[s]cheduling of damage awards" as the creation of "profiles of harm, crystallized into discrete categories of specified awards with upper and lower limits, ranked according to severity of physical injury." Rabin, supra note 31, at 376 (emphasis added). 167 That this approach is an intermediate one is not widely appreciated. Scholars often describe the U.S. SENTENCING GUIDELINES as if they were an instance of what this Article calls "announcing" instead of an intermediate approach.
173. See, e.g., Spier, supra note 2, at 85 n.3
174. Sunstein et al., supra note 30, at 2125. On announcing and the criminal law, see infra note 171. 168 This is not to say a range will thwart an otherwise effective precommitment. The Fair and Accurate Credit Transactions Act, described above, contemplates a range of statutory damages from $100 to $1000. See supra notes 134-38 and accompanying text. But the remedy works because the conditions are right for precommitment and the bottom number is sufficiently high (when claims are aggregated in a class action). That there is a range is irrelevant.
175. See Catherine M. Sharkey, Unintended Consequences of Medical Malpractice Damage Caps, 80 N.Y.U. L. REV. 391, 422-28 (2005).
176. Alternatively, on using advisory damage schedules as more accurate anchors, see Wistrich et al., supra note 39, at 1328-29. 170 This kind of decoupling of deterrence and compensation has been considered in the tort theory and optimal deterrence literatures and is controversial.
177. See, e.g., Martin Stone, On the Idea of Private Law, 9 CAN. J.L. & JURISPRUDENCE 235, 238-39 & 239 n.18 (1996) (criticizing such decoupling)
178. see also Nuno Garoupa & Chris William Sanchirico, Decoupling as Transactions Tax, 39 J. LEGAL STUD. 469 (2010) (discussing the effect of this decoupling on the primary activity). As a threshold matter, how receptive one is to such decoupling will depend on whether one accepts the broad definition of "remedy" employed in this Article, see supra note 12 and accompanying text, or instead insists that a remedy must be a remedying, a restoring of particular persons to their rightful position. An insightful account of the rise of this latter, more particularistic conception of remedies in tort law can be found in Goldberg, supra note 32, at 447-62
179. cf. Issacharoff & Witt, supra note 15, at 1573-77 (offering an account of aggregate-settlement devices that questions the individualistic conception of tort remedies).
180. See generally Samuel L. Bray, Power Rules, 110 COLUM. L. REV. 1172, 1187-89 (2010) (arguing that use of power rules in U.S. law ncreases prosecutorial discretion)
181. James Q. Whitman, Equality in Criminal Law: The Two Divergent Western Roads, 1 J. LEGAL ANALYSIS 119, 153-55, 159-60 (2009) (critiquing institutional problems of the American criminal-law system). Because prosecutors in the United States routinely have discretion to charge a defendant with one or more of a broad array of offenses, announcing the penalty for any one offense would not lead to greater equality, a greater perception of equality, or reduced costs of telling.
182. PLATO, supra note 71, bk. VI, 769a-b, at 156. 173 Id. at bk. VI, 772b, at 159-60.