Got Nino?

Despite the rain, wind, and cold, I'm not bitter or angry anymore, mostly because I'll be in Rome this weekend. Somehow, I'll also be on plane back to Chicago two weeks from today. Since I have no motivation to study, I've spent my day catching up on past episodes of PTI podcasts and trolling the web for anything new or different. In my virtual travels, I finally found a recording of the joint Federalist Society/American Constitution Society symposium on constitutional interpretation. The event featured a rather lengthy (and rare) discussion between Justice Breyer and Justice Scalia.

For those that don't know, the Federalist Society is group of conservative legal practitioners, students, and professors, while the ACS is it's liberal counterpart. While Justice Scalia gets a bit more face time in the press than Breyer for his sometimes abrasive, conservative commentary, they're both brilliant and manage to succinctly describe their opposing theories of constitutional interpretation. It's good stuff.

I don't expect any of you to watch it, but I think you should. The American public should know more about the Court so they can understand its primary function and role in government. Without this knowledge, we're left to the devices of mass media that reports only the outcome and not the substance of big cases. The video is long - nearly ninety minutes - but you don't have to watch it all. If you even catch the first ten minutes, you'll learn some good stuff. I've watched it twice. The video can be found here.

Enjoy. Or don't. Just thought perhaps one of you might be bored enough to check it out.

Fuck Jurisprudence

No, I'm not angry at jurisprudence. Instead, I refer to Fuck, a working paper by Ohio State University Professor Christopher Fairman, which explores (in a convincingly scholarly manner) the history, use, and legal ramifications of the word "fuck" (note: I link to the article abstract, but you can download it for free from the same page). As with everything I post here, only read it if you're REALLY bored. But since you're on my blog in the first place, I can safely assume you are.

This is clearly not the first long, trivial article to which I've posted on my blog with the disclaimer that it's only for procrastinating law nerds. If you're wondering, yes, I am one such person. And sadly I do read all this crap. It's amazing I get anything productive done at all.

In other news, I have cravings for mashed potatoes and hot dogs, but not at the same time.

First Monday in October

On a law dork note, today marks the start of the new Supreme Court term (OT 2006). This makes me happy. Stay tuned for some serious fireworks in the coming months as the new Roberts Court finds its footing.

Negligent Negligence?

NOTE: this post is really only for law students and/or other huge dorks. I apologize to the rest of you. Don't judge me for it!

Belgian law is based on the French system of civil law, rather than English common law. As I'm not intimately familiar with civil law systems, my understanding of their tort regimes is limited. Nonetheless, I'm going to wing this one anyway.

Upon registration here as a student, I had to pay E13 for what they call "third-party liability insurance." Always skeptical of insurance, I asked for an explanation. In broken English, the administrator said something to the effect of:

"It is for if you bring damage to someone else, then you don't have to pay. So if you damage someone or scratch a car with your bike, then you don't pay."

For reasons that should be obvious, I found this hard to believe, but upon further research the administrator appears to be correct. I don't know the precise scope or contours of this insurance plan (for instance, I don't know if it covers intentional torts, though I think it does), but its existence just blows my mind.

Insurance, as we all know, is subject to the so-called Moral Hazard problem, whereby an individual is likely to change his behavior in the presence of an insurance contract because he will not be subject to the same degree of liability in the event he fucks up. In short, he won't be as careful. This certainly isn't an insurmountable problem as both providers and purchasers think insurance in many situations is appropriate. In fact, we as a society even require it in some circumstances (as with auto insurance).

But here, I have what amounts to "tort insurance", which seems to undermine the entire purpose of tort law. Though admittedly open to debate, at least one of the underlying goals of an effective tort regime (at least in our system) is to induce people to behave optimally. Justice Learned Hand first applied a cost-benefit analysis to negligence cases in US v Carroll Towing, and we've more or less been down that path ever since.

(for any non-law people who have made it this far in the post, (1) congrats, you're a dork, and (2) a brief aside: Carroll Towing and its progeny created a system whereby negligence is assigned to incentivize individuals to take efficient levels of precaution. If the cost of a certain precaution is less than the benefit it creates, then the individual must take such precaution. When one fails to do so, he is deemed negligent and held liable for injuries incurred.)

As applied here: if I have tort insurance, the potential cost of my actions drastically decreases since I won't have to pay any damages I cause. As such, the cost of certain, potentially risky behavior is no longer greater than any benefits I may recieve from engaging in it. Ergo, jumping up and down on cars sounds like a great idea, and I am far more likely to be a reckless hooligan. Awesome.

I dunno. This country hasn't blown up yet, but if this system were implemented in the US we'd (finally?) have total anarchy! I guess it's also possible the civil law system handles these issues differently, but I'm pretty sure I'm right here. Either way, I find it interesting - food for thought if nothing else.

In other news, I really need a haircut.