Lawganism

Imaginary Encounter on the Clapham Omnibus

From the grey denim dresses strewn all over the racks and upholstery, you wouldn’t have guessed that Osmanthus sells apparel of all shades under the Sun. ‘This is what you get from helicopter parents,’ she thinks to herself as she impatiently taps her sequined slipper. ‘A spoilt princess who demands perfection but can’t make her own decision on a detail as trivial as dress length.’

‘Do you think I’m still showing too little skin with this one?‘ The curly-haired customer spins around. Osmanthus quickly unfolds her arms and puts on a smile.

‘Absolutely not! It suits you to a T. Fashion magazines these days cover up their models. They know that less is more.’

‘More?’ The girl gasps. ‘I want an outfit that bucks the trend.’

‘Oh! That’s easy-peasy,’ Osmanthus forces her weary, creasing eyebrows to straighten out. ‘The one a little to the left, which I fetched for you from the storeroom half an hour ago, will show off the full stretches of your thighs. If there’s a goal in your mind, go all the way, dearie. Don’t let shyness stop you from standing out.’

The girl sullenly moves on to a dress only half an inch shorter instead, ‘I don’t really want to stand out. Wait. Maybe grey and plain denim are already making for an eyeful. I should probably go for black chiffon like everyone else. But chiffon betrays my body shape. Flowery frocks? They make me look like a cheap pumpkin even a phoney should have no qualms openly digging into. Or maybe a brighter shade of denim with just enough ornamental stitches? I’m not sure how ornamental is just ornamental enough, though.’

Osmanthus strenuously stops her eyes from rolling.

‘I have a perfect idea. Why don’t you buy the longest plain denim dresses in various colours and test them around? If one look doesn’t work, change to another colour or get your mom to shorten the hem and add the stitches.’

‘But one is one time too many.’

‘People have goldfish memories. What’s more, if we have to be careful about what we wear all the time, we’re slaves to the tastes of others.’ Osmanthus looks kindlier than ever at the girl, slave to a whiny highschooler’s wallet. In her next life, she wants to be a filthy rich heiress.

The girl bites her lips. A teardrop comes rolling down, which she hastily tries to swat away. ‘I’m, I’m sorry. It’s…just that I don’t have a goldfish memory. I still remember how the first guy who forced himself on me spat that I brought it on myself with my hotpants. The second cooed that he had a fondness for ‘tame lambs’ so the type of long dress I had switched to aroused him.’

Who is a Least Cost Avoider?

In the right context, the name nearly says it all. A least cost avoider, in American judge and academic Guido Calabresi's conceptualisation, is simply the party who can enable maximal avoidance of costs, monetary and otherwise, of (i) a harmful event and (ii) preventing that harmful event.*1 In the case of gender violence avoidance, this would be potential assailants, who suffer less from self-restraint than would-be victims suffer from fear-driven outfit selection, understand their victim preferences best and, most critically, know when they are about to strike.

Numerous variants of the term have been floating around: cheapest cost avoider,*2 cheaper cost avoider,*3 lower-cost harm avoider,*4 lesser cost avoider,*5 superior risk bearer,*6 (more/most) efficient risk bearer,*7, most efficient cost avoider,*8 etc. Semantics and possibly varying intentions of assorted writers may suggest some diversity of meanings and usages among the terms, but as far as one focuses on a harm of a fixed size and time range and empathises with the struggle between generalisable, succinct abstraction and grammatical technicalities, a lower 'cost' would equate higher 'efficiency' and a 'most' efficient ___ theory would suffice for 'more' efficient ___ theory when it is extended to two-party scenarios. So would their synonyms and cognates, except that 'bearing' may come across as a broader concept than 'avoidance'. Risk bearing has the more prominent linguistic potential to additionally cover the relative tolerance of harm and capacity for compensation, even though compensation would not always be the same as correction. Nevertheless, 'avoidance' theorists narrow/close the speculative gaps when they count compensation as a cost or smaller approximate cost and attach a higher cost to a harm when it is shouldered by someone with lower harm tolerance / compensation capacity than when it is shouldered by someone with higher harm tolerance / compensation capacity.*9

A look at the history of legal scholarship sheds light on the classically intended meaning of risk bearing. Whereas Calabresi has been credited with the development of the 'cheapest cost avoider' principle,*10 fellow long-time judge-academic Richard Posner and lawyer-academic Andrew Rosenfield are the ones more associated with the 'superior risk bearer' approach.*11 The duo has explicitly equated the description 'superior risk bearer' to 'lower-cost risk bearer'*12 and 'more efficient risk bearer',*13 so much of the above analysis regarding equivalency is not outright off the mark here. They also elaborated on what can make a party a superior risk bearer: First, she may be better able to prevent a risk from materialising, possibly by more cheaply preventing that materialisation.*14 Second, she may more cheaply (a) gauge the probability of risk materialisation and size of loss that would result from the materialisation, the product of which would give the expected loss, and (b) insure for the loss.*15 In non-legal contexts, that insurance might partly take the form of a supportive community network cultivated over many years, ready to buffer against any emotional trauma. Unfortunately, what with persistent victim blaming, even among loved ones, and stigma against victims of sexual crimes, such a network can be elusive.

How Can a Least Cost Avoider or Superior Risk Bearer be Deployed?

If the harm is preventable, the least cost avoider / superior risk bearer is to put in the requisite effort to avoid the harm, failing which she would take blame for any fallout, or at least accept that the other party is blameless and/or need not make reparations. If the harm is unpreventable, the superior risk bearer is to acquire insurance and make reparations anyway for any harmed party other than herself.*16 The overall effect is to spread losses around so that they are not concentrated in unluckier parties.

Strengths of Least Cost Avoidance / Superior Risk Bearing

Suiting the common tendency to engage in binary thinking, this all-or-nothing approach to assigning responsibility sends a clear message to the most reckless party in each scenario. Otherwise, this party may compare herself to people accepting full responsibility in other cases and believe her mistakes to be trivial.
Given persons of similar characteristics, it is easier for multiple persons to cope with a smaller loss each than for one person to contend with a larger loss.*17
When applied widely and prominently enough, the concepts may cultivate a mentality of magnanimity that treats personal power as a source of duty to the less advantaged, rather than a license for tyranny.
To the extent that relative costs examined are commonsensical or numerical in nature to begin with and the act of adjudicating between costs is accepted, the persuasiveness of these approaches (consequentialist approaches) is neutral to personal beliefs and value systems, unlike that of approaches regarding behaviours as inherently right or wrong (deontological approaches). The latter include both condemnation of assailants' violence as a wrong in itself and extolment of victims' self-responsibility as a right in itself.
Reduced free-riding—The least cost avoider / superior risk bearer would not get to benefit from an activity deleterious to others without paying for it.

Vulnerable Spots

The idea of what counts as a 'cost' probably varies from person to person. Some people may, for instance, dismiss the significance of mental exertion necessary for precautionary measures. Without early-on definition, the term generates uncertainty that may contribute to suboptimal precaution-taking and becomes susceptible to arbitrators' whims and biases. On their part, courts such as those in Anglo-American jurisdictions historically tend to be wary of working with intangibles, but judicial recognition of emotional harm has been growing*18 *19 and such recognition may increasingly spill over to non-physical/non-monetary costs in general as time passes. Neuroimaging and other scientific advances rendering mental phenomena visible and quantifiable, even if such quantification may be superficial from a philosophical perspective, are also helping the cause.
Many entities potentially countable as costs are difficult to quantify.
An antagonistic stance, characteristic of lawsuits, is not always ideal. Neither is an all-or-nothing approach. Instead, putting heads together, pooling competencies and resources, and most importantly, seeing the other party as yourself may maximise prevention. Collaborative approaches could include splitting the same type of costs among different parties and assigning different types of costs to different parties. The latter is worth considering especially since different parties may be best at enabling minimisation of different constituent costs—harm costs, prevention costs, risk evaluation costs, insurance costs—of the cheapest cost avoider / superior risk bearer approaches.*20
The availability of loss spreading may inadvertently embolden a party in which risk is otherwise concentrated to act recklessly.*21
Some types of costs are so important some, if not many, people believe that they should not be paid as sacrifice no matter what. This creates a philosophical paradox when two costs of such types are pitted against each other. You might appreciate someone stopping a runaway trolley hurtling towards you and other people, but would very likely hesitate being the big man thrown in front of the trolley to stop it. Thankfully, there are many commonly acceptable costs that can lie on either or both sides of the math inequality to render the least cost avoidance / superior risk bearing concepts useful. Forgoing fleeting carnal pleasure and superficial feeling of mastery over victims, who may have seen rich, wondrous universes their assailants will never see and experienced beautifully touching warmth they will never know of, is certainly one of them.
It might seem unjust to impose a burden on people for unpreventable harms. However, considering that the same person may be a least cost avoider / superior risk bearer on some occasions and at the mercy of least cost avoiders / superior risk bearers on other occasions, probable burdens and probable benefits may balance out in the grand scheme of things. In contract law, the least cost avoidance / superior risk bearing concepts are in some situations default rules that can be modified by the parties in their agreements such that the higher cost avoider / inferior risk bearer consents to absorbing a risk all by herself.*22
Harms/risks, along with their probabilities and sizes, can be difficult to foresee.*23 Whether they are within a particular person's or even a 'reasonable' person's capability to foresee is also potentially a subject of contentious debate.
When the cost of interference exceeds the cost of the uninterfered harmful event, the obliging least cost avoider does not lead to least cost avoidance. Nevertheless, suspension of least cost avoider rules under such circumstances (i.e. resignation to the 'lesser evil') would not be a problem if the cost of the event is so small as to be insignificant. All hope is not lost even if it is not, since human ingenuity may supply cost-lowering solutions one day. A similar argument applies to risk evaluation and insurance costs with respect to superior risk bearing.
Care must be taken to include communication and enforcement costs under the heading of prevention cost.
Perhaps, the extent to which a party's costs matter depends on her moral status, i.e. whether she is worthy enough for others to care that much about her welfare. Wilfully malicious individuals, for example, may warrant little or no sympathy for the costs it takes them to curb their destructive behaviour. Then again, this redundancy issue may be worked into the least cost avoidance / superior risk bearing calculus by assigning lower or nil costs to such curbs.
When unsupplemented by other principles, the neutrality of the least cost avoidance / superior risk bearing approaches to the moral quality of actions, beyond which side of the math inequality actions lead perpetrators and victims to, downplays the human need to condemn and redress unconscionable conduct in itself.*24

Food for Thought

Suppose, in spite of the numerous countervailing considerations listed in the prior section, the most optimal approach to harm avoidance were one where parties on all sides have a role to play, what would that say about victim blaming?

Some victim blamers, particularly if they are close to the victim, probably believe they are acting purely out of genuine concern. They vividly imagine or witness the profound distress of someone so familiar and frequently even intimately connected to them. And they see simple changes within her reach that would undo her fate if we could go back in time. The forward-looking among them may also think of their actions as rational interventions which prevent history from repeating itself on her. Perpetrators and would-be perpetrators, in contrast, are often remote, foreign beings whose shoes it is unfathomable to step into. Needless to say, neither is it generally feasible to lecture these miscreants instead.*25

Behaviour driven by such mentalities is more superfluous than it may seem. A sexual assault victim, for one, not only experiences pain more acutely than victim blamers. She very often replays the misencounter in her mind—and very often uncontrollably—scrutinising and turning over every detail to see what she could have done differently to avert tragedy. Whereas victim blamers put themselves in her position sporadically for as little as a few minutes at a go, she typically lives with the memory and consequences—not to mention living within the infringed body—for her whole life, delving far deeper and longer into the what-ifs than anyone else. There is likely nothing more the basic level of practical judgment advocated by many victim blamers can inform her. There is likely nothing more that is necessary to remind her to take extra precautions in the future either.

If basic practical judgment is indeed the prescribed game changer, chances that a victim has already known and/or practised it in the lead-up to the misencounter should not be underestimated as well. To do otherwise is to patronise the victim. Imperfections, if present, probably lie in commonplace difficulties of translating awareness into actions and actions into results. Freeze responses to overwhelming threat stimuli, being caught off-guard, social pressure and precaution fatigue can all dismantle defences the average victim blamer believes in. In addition, people taking inadequate reasonable precautions do not necessarily constitute the majority of victims, among whom are a deluge of those in situations demanding unreasonable precautions, situations optimally but not perfectly remediable by precautions, and situations in which other parties with cost avoidance / risk bearing roles simply shirk responsibility.

At this, victim blamers may retort that if paralysing factors and inescapable situations were that high in frequencies they themselves would have already succumbed to them, particularly if they assume their own experiences are representative of everyone's. Yet, unless the subject matter is unique and unitary in nature, sample sizes of one constitute very problematic statistics! At the same time, outliers are real phenomena. If victim blamers must leverage on their personal experiences, they should be consistent by reflecting as well on aspects of their own lives where they appear to be anomalies despite their best efforts: hardworking academic families raising delinquent kids, salaried-workers-turned-freelance-musicians helplessly starving for love of their craft, lanky new immigrant whose affability and assertiveness cannot ward off school bullies, cold-prone gym rats, lawyers with bad grammar, and so on and so forth.

Should any component of victim blaming have a more than hypothetical place in responses to criminal and anti-social tendencies, it would predominantly take the form of pre-encounter advice. Post-encounter advice is best reserved for incidents inflicting little suffering on victims, as with forgetful school kids leaving lunches at home. Above all, it is vital to remember that admonishment and feelings of superiority are never called for when others bear the brunt of those tendencies, because cost avoidance and risk bearing measures are but burdens thrown upon victims' shoulders by a deformed universe they have not invited themselves into.

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*1:Yuval Sinai and Benjamin Shmueli, 'Calabresi's and Maimonides's Tort Law Theories—A Comparative Analysis and a Preliminary Sketch of a Modern Model of Differential Pluralistic Tort Liability Based on the Two Theories' (2014) 26 Yale JL & Human 59, 66.

*2:Guido Calabresi, The Cost of Accidents: A Legal and Economic Analysis (Yale University Press 1970).

*3:Richard A Posner, 'Some Uses and Abuses of Economics in Law' in Jenny B Wahl (ed), Overview and Economic Analysis of Property and Criminal Law (Garland 1998) 131.

*4:William M Landes and Richard A Posner, The Economic Structure of Tort Law (Harvard University Press 1987) 223.

*5:Mario J Rizzo, 'Law amid Flux: The Economics of Negligence and Strict Liability in Tort' (1980) 9 J Leg Stud 291, 292.

*6:Richard A Posner and Andrew M Rosenfield, 'Impossibility and Related Doctrines in Contract Law: An Economic Analysis' (1977) 6 J Leg Stud 83, 90.

*7:Michelle J White, 'Contract Breach and Contract Discharge Due to Impossibility: A Unified Theory' (1988) 17 J Leg Stud 353, 358.

*8:Stephen M Sheppard, The Wolters Kluwer Bouvier Law Dictionary: Quick Reference (Wolters Kluwer Law & Business 2012).

*9:Without such cost weighting or measures achieving a similar effect, there is no real 'least cost' to speak of as far as compensation is concerned since the same cost is just being transferred from a victim to a perpetrator and/or other relevant parties like the perpetrator's malpractice insurer.

*10:Sinai and Shmueli, 66.

*11:e.g. Donald J Smythe, 'Impossibility and Impracticability' in Gerrit De Geest (ed), Contract Law and Economics (2nd edn, Edward Elgar 2011) 209.

*12:Posner and Rosenfield, 117.

*13:Posner and Rosenfield, 90-91.

*14:Posner and Rosenfield, 90.

*15:Posner and Rosenfield, 90-92.

*16:Posner and Rosenfield, 90-91.

*17:Monika Hinteregger, 'Tort law as an Instrument for the Prevention and Remediation of Catastrophic Harm' in Alexia Herwig and Marta Simoncini (eds), Law and the Management of Disasters: The Challenge of Resilience (Routledge 2017) 213 (without the qualification).

*18:Harvey Teff, Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability (Hart Publishing 2008).

*19:John J Kircher, 'The Four Faces of Tort Law: Liability for Emotional Harm' (2007) 90 Marq L Rev 789.

*20:Jane Stapleton, Product Liability (Butterworths 1994) 138 (argument for the cheapest cost avoider approach).

*21:Hinteregger, 214.

*22:E.g. Restatement (Second) of Contracts §§ 154(a) and 285-2 (1981), which support a mutually agreed assignment of risk of mistaken belief and a contract never to sue respectively.

*23:Pietro Trimarchi, 'Commercial Impracticability in Contract Law: An Economic Analysis' (1991) 11 Int Rev Law Econ 63.

*24:To his credit, Calabresi identified justice and fairness as conditions keeping the least cost avoidance strategy in check. These qualifications, however, are arguably too vague to account for the intrinsic moral wrongness of undesirable acts. A critique of Calabresi's coverage of the two conditions and an argument that his concept undermines the moral dimension of tort law can be found in Jules L Coleman, 'The Costs of The Costs of Accidents' (2005) 64 Md L Rev 337, 340 and 353 respectively.

*25:More broadly speaking, postulated causes of victim blaming include collectivistic values and belief in a just world where innocent, responsible people do not come to harm. See Rebecca M Hayes and others, 'Victim Blaming Others: Rape Myth Acceptance and the Just World Belief' (2013) 8 Fem Criminol 202 and Laura Niemi and Liane Young, 'When and Why We See Victims as Responsible: The Impact of Ideology on Attitudes Toward Victims' (2016) 42 Pers Soc Psychol Bull 1227.

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