The rule of law: Why is predictability important?

As if to demonstrate that their website is simply reflexively anti-reform rather than anything to do with the justice they supposedly aspire to, one of their trolling bloggers attacks the American Justice Partnership for seeking predictability in the law (and does so by quoting a positively deranged anonymous blogger). Of course, predictability—that like cases are treated alike—is a fundamental component of the definition of justice. The social benefits of the rule of law are so obvious that it should hardly be necessary to list them, but, aside from issues of fundamental fairness enshrined in our Constitution in the ex post facto clause among other places, predictability has other advantages. If a result is predictable, settlement is easier: there’s little point in continuing to litigate on either side, because additional money spent on lawyers cannot change the result. If a result is predictable, one can more easily conform conduct to be law-abiding. Corporations aren’t incentivized to break contracts with one another to see whether they can get a better deal in the courts; individuals and corporations know where the line is in dealing with the public and won’t step over it. And as I noted last year,

In banana republics across the globe, economies come to a standstill because the risk of confiscation or corruption keeps many investments from ever happening. The same danger occurs when the expropriation is conducted by lawyers in the name of “justice.” If businessmen and entrepreneurs—be they insurers, manufacturers of lifesaving pharmaceuticals, or the small businesses that deliver your packages—have to account for the risk that their contractual arrangements will be disregarded by courts, they have to raise prices to account for that risk. Such increased prices mean fewer contracts are signed and fewer businesses are started. Consumers are worse off, not just because they now have fewer options, but because the economy is smaller as jobs and opportunities are lost. The only beneficiaries are the lawyers.

The poster knows darn well that the idea of predictability in justice hardly originates with Dan Pero and reformers. As I once noted to the same poster in a comment thread:

Since when is predictability a component of justice?

Since at least Aristotle, and arguably even further back to Mosaic law and the Code of Hammurabi.

If a desire for predictability in law makes one a reformer, then one can certainly add Plato, Thomas Aquinas, Montesquieu, Justice Holmes, and Lord Chief Justice Bingham of Cornhill to the list of reformers. More recently, one can read Richard Epstein on the subject. Justinian Lane would serve himself better by reading more books and fewer anonymous blogs before he asks such silly questions.

The rule of law: Why is predictability important? is a post from Overlawyered - Chronicling the high cost of our legal system