[Friedman & Wickelgren 2011] A new angle on rules versus standards


#1

ABSTRACT: The debate over standards versus rules has been framed as a trade-off between the certainty and lower administrative costs of rules versus the greater flexibility to base decisions on case-specific evidence with standards. In this paper, we argue that even if judges have no ability to directly assess case-specific evidence, standards may create a desirable signaling effect that improves the judge’s decision. Even when judges cannot directly observe the merits of the case, if they are not bound by rigid rules, they are more likely to base their decision on the quality of legal representation. When the ex-post effects of the decision matter, and when the decision only affects the parties to the lawsuit, the party that desires the efficient decision has the most to gain, and would be expected to exert the most effort. As a result, this party would be more likely to prevail under a standards based system. We argue that this effect can be a strong argument in favor of a standards based system.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1990592


#2

When the ex-post effects of the decision matter, and when the decision only affects the parties to the lawsuit, the party that desires the efficient decision has the most to gain, and would be expected to exert the most effort. As a result, this party would be more likely to prevail under a standards based system. We argue that this effect can be a strong argument in favor of a standards based system.

This reminds me of Peter Leeson’s description of medieval trial by battle: http://www.peterleeson.com/Trial_by_Battle.pdf


#3

Yes! You might love this review (obliquely) of a book I never read (who anywhere near the spirit of this space can read, let alone write, as many as the review’s author?) about the Icelandic saga as an implementation of global mutable state.

Richard Posner - Medieval Iceland and Modern Scholarship (reviewing William Ian Miller, Bloodtaking and Peacemaking: Feud, Law and Society in Saga Iceland)

To remain nominally “on-topic” (in terms of subject matter), @matdryhurst’s work on federated digital property, SAGA, has crossed over into actual blockchain stuff, the specifics of which might inform the creation of a category somewhere between “multiparty computation” and “economics” here. (“Cryptohumanism” is so tacky it would catch on, so that’s precluded, I should hope, but at least it’s not “curation markets.”)

e: “Cryptohumanities” is maybe the more appropriately balanced deadpan term? I worry about irony entropy.