Yale Law Journal: Volume 122, Number 1 - October 2012
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About this ebook
One of the world's leading law journals is available in quality ebook formats for ereader devices and apps. This issue of The Yale Law Journal (the first issue of Volume 122, academic year 2012-2013) features new articles and essays on legal theory, tort law, criminal defense representation, statutory interpretation, "branding" of celebrities and artists, and other areas of interest. Contributors include such noted scholars as Ariel Porat & Eric Posner (on the concept of aggregation in decision-making over many fields of law), Victoria Nourse (on using legislative history in statutory interpretation), and James Anderson & Paul Heaton (on effectiveness of defense counsel in murder cases). The issue also features student contributions on rights of identity and branding, sales tax, and international statutory interpretation.
Yale Law Journal
The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.
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Yale Law Journal - Yale Law Journal
THE YALE LAW JOURNAL
OCTOBER 2012
VOLUME 122, NUMBER 1
Yale Law School
New Haven, Connecticut
Smashwords edition: Published by Quid Pro Books, at Smashwords.
Copyright © 2012 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher.
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Cataloging for Volume 122, Number 1:
ISBN: 1610279298 (ePUB)
ISBN: 978-1-61027-929-1 (ePUB)
CONTENTS
[Volume 122, Number 1, October 2012]
About The Yale Law Journal
RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to The Yale Law Journal Online at http://yalelawjournal.org/submissions.html. We cannot guarantee that submitted responses will be published. Those responses that are selected for publication will be edited with the cooperation of the author.
The Yale Law Journal is published eight times a year (monthly from October through June, excluding February) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to The Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.
SUBSCRIPTIONS. A year subscription for Volume 122 is $55.00 payable in advance (please see our website for overseas shipping charges). Remittance must be made by U.S. Dollar drafts payable at a U.S. bank. Unfortunately, we are not able to accept payments in cash or by credit card. Subscription requests received after the first issue of a volume has been printed will run for eight consecutive issues unless otherwise indicated by the subscriber. Subscription backstarting is not permitted to include prior volume years. Overseas delivery is not guaranteed.
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SINGLE AND BACK ISSUES. Each issue of Volume 122 of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc. for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. Dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-121, please contact William S. Hein and Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org/) and in ebook formats at Amazon, Barnes & Noble, and Apple.
MANUSCRIPTS. The Journal invites the submission of unsolicited articles, essays, and book reviews. Manuscripts must be submitted online at http://yalelawjournal.org/submissions.html.
COPYRIGHT. Copyright © 2012 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com/.
PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal . The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 0044-0094.
INTERNET ADDRESS. The Yale Law Journal’s homepage is located at http://www.yalelawjournal.org.
YALE LAW SCHOOL
OFFICERS OF ADMINISTRATION
Richard Charles Levin, B.A., B.Litt., Ph.D., President of the University
Peter Salovey, A.B., M.A., Ph.D., Provost of the University
Robert C. Post, A.B., J.D., Ph.D., Dean
Douglas Kysar, B.A., J.D., Deputy Dean
Megan A. Barnett, B.A., J.D., Associate Dean
Toni Hahn Davis, B.A., M.S.W., J.D., LL.M., Associate Dean
Brent Dickman, B.B.A., M.B.A., Associate Dean
S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian and Professor of Law
Mark LaFontaine, B.A., J.D., Associate Dean
Kathleen B. Overly, B.A., J.D., Ed.D., Associate Dean
Asha Rangappa, A.B., J.D., Associate Dean
Mike K. Thompson, B.A., M.B.A., J.D., Associate Dean
FACULTY EMERITI
Guido Calabresi, B.S., B.A., LL.B., M.A., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law
Harlon L. Dalton, A.B., J.D., Professor Emeritus of Law
Mirjan R. Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law
Jan Ginter Deutsch, B.A., LL.B., Ph.D., M.A., Walter Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law
Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History and Professor (Adjunct) of Law
Michael J. Graetz, B.B.A., LL.B., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law
Quintin Johnstone, A.B., J.D., LL.M., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law
Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law
Carol M. Rose, B.A., M.A., Ph.D., J.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law
Peter H. Schuck, B.A., J.D., LL.M., M.A., Simeon E. Baldwin Professor Emeritus of Law and Professor (Adjunct) of Law (fall term)
John G. Simon, B.A., LL.B., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law
Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law
Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law
FACULTY
Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science
† Muneer I. Ahmed, A.B., J.D., Clinical Visiting Professor of Law
Anne L. Alstott, A.B., J.D., Jacquin D. Bierman Professor in Taxation
Akhil Reed Amar, B.A., J.D., Sterling Professor of Law
Ian Ayres, B.A., J.D., Ph.D., William K. Townsend Professor of Law
‡ Jack M. Balkin, A.B., J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment
Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)
Lea Brilmayer, B.A., J.D., LL.M., Howard M. Holtzmann Professor of International Law
Richard Brooks, B.A., M.A., Ph.D., J.D., Leighton Homer Surbeck Professor of Law
Robert A. Burt, B.A., M.A., J.D., Alexander M. Bickel Professor of Law (fall term)
Guido Calabresi, B.S., B.A., LL.B., M.A., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
‡ Stephen L. Carter, B.A., J.D., William Nelson Cromwell Professor of Law
Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law
Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law
Harlon L. Dalton, A.B., J.D., Professor Emeritus of Law
Mirjan R. Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law
Bruno Deffains, Ph.D., Visiting Professor of Law (spring term)
Jan Ginter Deutsch, B.A., LL.B., Ph.D., M.A., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law
Fiona Doherty, B.A., J.D., Clinical Associate Professor of Law
Steven B. Duke, B.S., J.D., LL.M., Professor of Law
Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor of Property and Urban Law (spring term)
E. Donald Elliott, B.A., J.D., Professor (Adjunct) of Law
† William Eskridge, Jr., B.A., M.A., J.D., John A. Garver Professor of Jurisprudence
* Daniel C. Esty, A.B., M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School
Jeffrey Fagan, M.E., M.S., Ph.D., Florence Rogatz Visiting Professor of Law (spring term)
Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
James Forman, Jr., A.B., J.D., Clinical Professor of Law
‡ Heather Gerken, A.B., J.D., J. Skelly Wright Professor of Law
Paul Gewirtz, A.B., J.D., Potter Stewart Professor of Constitutional Law and Director, The China Center
Abbe R. Gluck, B.A., J.D., Associate Professor of Law
Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History and Professor (Adjunct) of Law (fall term)
Michael J. Graetz, B.B.A., LL.B., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law (fall term)
David Singh Grewal, B.A., J.D., Ph.D., Associate Professor of Law
Dieter Grimm, LL.M., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (spring term)
Henry B. Hansmann, A.B., J.D., Ph.D., Oscar M. Ruebhausen Professor of Law
Robert D. Harrison, J.D., Ph.D., Lecturer in Legal Method
Oona A. Hathaway, B.A., J.D., Ph.D., Gerard C. and Bernice Latrobe Smith Professor of International Law
Roderick M. Hills, Jr., B.A., J.D., Anne Urowsky Visiting Professor of Law
Edward J. Janger, B.A., J.D., Visiting Professor of Law (fall term)
Quintin Johnstone, A.B., J.D., LL.M., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law
† Christine Jolls, B.A., J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization
Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law and Professor of Psychology
‡ Paul W. Kahn, B.A., Ph.D., J.D., Robert W. Winner Professor of Law and the Humanities and Director, Orville H. Schell, Jr. Center for International Human Rights
Amy Kapczynski, A.B., M.Phil., M.A., J.D., Associate Professor of Law
S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian and Professor of Law
Amalia D. Kessler, A.B., M.A., J.D., Ph.D., Sidley Austin-Robert D. McLean ’70 Visiting Professor of Law (fall term)
Daniel J. Kevles, B.A., Ph.D., Professor (Adjunct) of Law (fall term)
‡ Alvin K. Klevorick, B.A., M.A., Ph.D., John Thomas Smith Professor of Law and Professor of Economics
† Harold Hongju Koh, A.B., B.A., J.D., M.A., Martin R. Flug ’55 Professor of International Law
Anthony T. Kronman, B.A., Ph.D., J.D., Sterling Professor of Law
Douglas Kysar, B.A., J.D., Deputy Dean and Joseph M. Field ’55 Professor of Law
John H. Langbein, A.B., LL.B., Ph.D., Sterling Professor of Law and Legal History
Justin Levitt, B.A., M.P.A., J.D., Visiting Associate Professor of Law (spring term)
James S. Liebman, B.A., J.D., Visiting Professor of Law
‡ Yair Listokin, A.B., M.A., Ph.D., J.D., Professor of Law
Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law
† Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law
Miguel Maduro, Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)
Chibli Mallat, L.L.B., L.L.M., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)
Joseph G. Manning, B.A., A.M., Ph.D., Professor (Adjunct) of Law (fall term)
David Marcus, B.A., J.D., Maurice R. Greenberg Visiting Professor of Law
Daniel Markovits, B.A., M.Sc., B.Phil./D.Phil., J.D., Guido Calabresi Professor of Law
Jerry L. Mashaw, B.A., LL.B., Ph.D., Sterling Professor of Law (fall term)
Braxton McKee, M.D., Associate Professor (Adjunct) of Law (fall term)
† Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law
Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing
Jeffrey A. Meyer, B.A., J.D., Visiting Professor of Law
Alice Miller, B.A., J.D., Associate Professor (Adjunct) of Law (spring term)
Nicholas Parrillo, A.B., M.A., J.D., Ph.D., Associate Professor of Law
Jean Koh Peters, B.A., J.D., Sol Goldman Clinical Professor of Law and Supervising Attorney
Thomas Pogge, Ph.D., Professor (Adjunct) of Law (spring term)
Robert C. Post, A.B., J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law
J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law and Supervising Attorney
Claire Priest, B.A., J.D., Ph.D., Professor of Law
George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship
‡ W. Michael Reisman, LL.B., LL.M., J.S.D., Myres S. McDougal Professor of International Law
‡ Judith Resnik, B.A., J.D., Arthur Liman Professor of Law
‡ Roberta Romano, B.A., M.A., J.D., Sterling Professor of Law and Director, Yale Law School Center for the Study of Corporate Law
Carol M. Rose, B.A., M.A., Ph.D., J.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law
Susan Rose-Ackerman, B.A., M.Phil., Ph.D., Henry R. Luce Professor of Jurisprudence, Law School and Department of Political Science
Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law
Jennifer Prah Ruger, B.A., M.A., M.Sc., Ph.D., M.S.L., Associate Professor (Adjunct) of Law (spring term)
William M. Sage, A.B., M.D., J.D., Visiting Professor of Law (spring term)
Peter H. Schuck, B.A., J.D., LL.M., M.A., Simeon E. Baldwin Professor Emeritus of Law and Professor (Adjunct) of Law (fall term)
Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law and Social Sciences
‡ Alan Schwartz, B.S., LL.B., Sterling Professor of Law
Ian Shapiro, B.Sc., M.Phil., Ph.D., J.D., Professor (Adjunct) of Law (spring term)
† Scott J. Shapiro, B.A., J.D., Ph.D., Charles F. Southmayd Professor of Law and Professor of Philosophy
Robert J. Shiller, B.A., Ph.D., Professor (Adjunct) of Law (spring term)
Reva Siegel, B.A., M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law
Norman I. Silber, B.A., J.D., Ph.D., Visiting Professor of Law
James J. Silk, A.B., M.A., J.D., Clinical Professor of Law, Allard K. Lowenstein International Human Rights Clinic, and Executive Director, Orville H. Schell, Jr. Center for International Human Rights
John G. Simon, B.A., LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law
Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law
Richard Squire, B.A., M.B.A., J.D., Florence Rogatz Visiting Professor of Law
Stephanie M. Stern, B.A., J.D., Irving S. Ribicoff Visiting Associate Professor of Law (fall term)
Richard B. Stewart, B.A., M.A., LL.B., Visiting Professor of Law (fall term)
† Kate Stith, A.B., M.P.P., J.D., Lafayette S. Foster Professor of Law
Alec Stone Sweet, B.A., M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies
Tom R. Tyler, B.A., M.A., Ph.D., Macklin Fleming Professor of Law and Professor of Psychology
Patrick Weil, B.A., M.B.A., Ph.D., Visiting Professor of Law (fall term)
James Q. Whitman, B.A., M.A., Ph.D., J.D., Ford Foundation Professor of Comparative and Foreign Law
Abraham L. Wickelgren, A.B., J.D., Ph.D., Florence Rogatz Visiting Professor of Law
Luzius Wildhaber, LL.M., J.S.D., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)
Ralph K. Winter, Jr., B.A., LL.B., Professor (Adjunct) of Law
‡ Michael Wishnie, B.A., J.D., William O. Douglas Clinical Professor of Law and Director, Jerome N. Frank Legal Services Organization
John Fabian Witt, B.A., J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law
Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law
† Gideon Yaffe, A.B., Ph.D., Professor of Law and Professor of Philosophy
Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law
* On leave of absence, 2012–2013.
† On leave of absence, fall term, 2012.
‡ On leave of absence, spring term, 2013.
LECTURERS IN LAW
Emily Bazelon, B.A., J.D.
Cynthia Carr, B.A., J.D., LL.M.
Adam S. Cohen, A.B., J.D.
Linda Greenhouse, B.A., M.S.L.
Adam Grogg, B.A., M.Phil., J.D.
Lucas Guttentag, A.B., J.D.
Bruce J. Ho, B.A., M.E.M., J.D.
Jamie P. Horsley, B.A., M.A., J.D.
Margot E. Kaminski, B.A., J.D.
Katherine Kennedy, A.B., J.D.
Alex A. Knopp, B.A., J.D.
Annie Lai, B.A., J.D.
John T. Marshall, B.A., M.A., J.D.
Hope R. Metcalf, B.A., J.D.
Christina M. Mulligan, B.A., J.D.
James E. Ponet, B.A., M.A., D.D.
Nina Rabin, B.A., J.D.
Sia Sanneh, B.A., M.A., J.D.
Daniel Wade, B.A., M.A., M.Div., M.A., M.S., J.D.
VISITING LECTURERS IN LAW
Josh Abramowitz, B.A., J.D.
Melinda Agsten, A.B., J.D.
Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)
Richard Baxter, B.A., M.A., J.D.
H.E. Stuart Beck, B.A., J.D.
Frank P. Blando, B.S., M.B.A., J.D.
Stephen B. Bright, B.A., J.D.
Jennifer Gerarda Brown, A.B., J.D.
Helen V. Cantwell, B.A., J.D.
Brett Cohen, B.A., J.D.
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Aggregation and Law
Ariel Porat & Eric A. Posner
122 YALE L.J. 2 (2012)
Aggregation and Law
ARIEL PORAT & ERIC A. POSNER
ABSTRACT. If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent claims, and neither of them alleges misconduct sufficient to justify a remedy, the plaintiff will usually lose, even if the claims jointly allege sufficient wrongdoing to justify a remedy. Thus, as a general rule, courts refuse to engage in what we call factual aggregation (the first case) and normative aggregation (the second case), as well as other forms of aggregation that we identify. Yet we show numerous exceptions to this rule in private and public law. Notably, in public law, the hybrid rights doctrine permits courts to aggregate two weak constitutional claims as long as one involves free exercise of religion. In private law, certain tort and contract doctrines also permit aggregation. We criticize the courts’ inconsistent approaches to aggregation, and propose conditions under which courts should (and should not) aggregate.
AUTHORS. Ariel Porat is Alain Poher Professor of Law at Tel Aviv University, and Fischel-Neil Distinguished Visiting Professor of Law at the University of Chicago Law School; Eric A. Posner is Kirkland & Ellis Professor of Law at the University of Chicago Law School. For very helpful comments we thank Bobby Ahdieh, Hanoch Dagan, Avihay Dorfman, Shai Dothan, Lee Fennell, Talia Fisher, Sharon Hannes, Daniel Hemel, Aziz Huq, Roy Kreitner, Shai Lavi, Daryl Levinson, Richard McAdams, Martha Nussbaum, Timna Porat, Adam Samaha, Avraham Tabbach, Adrian Vermeule, Laura Weinrib, Eyal Zamir, and participants in workshops at Emory Law School, University of Virginia School of Law, Tel Aviv University School of Economics, and Tel Aviv University Faculty of Law. Thanks to Lior Kotler, Ellie Norton, Omer Yehezkel, and Randall Zack for very able research assistance, and to the members of The Yale Law Journal Editorial Board, and in particular Ned Hirschfeld, for their excellent suggestions and editorial assistance.
ARTICLE CONTENTS
INTRODUCTION
Suppose you are invited to dinner by a friend. You are a bit tired, but not extremely tired, so that reason by itself would not make you decline the invitation. You also want to spend the evening with your family, but this reason standing alone would not convince you to stay at home. Finally, you are also a bit pressed for time because you need to prepare a lecture for tomorrow, but once again you would not miss the dinner for that reason only. It is quite plausible that even if none of these reasons, standing alone, is sufficient for you to decline the invitation, the aggregation of all three reasons would be sufficient. Nevertheless, we suspect that most people, while aggregating the three reasons for themselves and declining the invitation, would not say to their friend that they cannot come to dinner because: (1) they are tired; (2) they want to spend the evening with their family; and (3) they need to prepare a lecture for tomorrow and are therefore pressed for time. They would instead choose the strongest of the three reasons and provide it as the sole reason for declining the invitation.
Consider another possibility. Your friend invites you to dinner a week in advance. Peering into the future, you predict that with some (low) probability you will be too tired, that with some (low) probability your children will need help with their homework, and that with some (low) probability you will need to prepare for work on the following day. You realize that while each event will individually come to pass with low probability, the probability that at least one of the events will come to pass is quite high. Even so, you would not say to your friend (if you want to keep your friendship) that while each reason you have for turning down the invitation is low probability, they are jointly high probability. Most likely, you would turn down the invitation on the basis of the most probable reason.
These puzzles, which we call aggregation puzzles,
have counterparts in the law. Consider a plaintiff who brings two separate claims against the defendant arising from the same event, a car accident. The plaintiff argues that the defendant committed a strict liability tort by driving an inherently dangerous vehicle and, in the alternative, that the defendant caused a tort through negligent driving. To win on the strict liability claim, the plaintiff must prove that the vehicle was inherently dangerous, but the plaintiff can provide evidence to show only a 40% probability of inherent dangerousness. In addition, the plaintiff can show only a 40% probability of negligence. A court would hold against the plaintiff on both claims because she cannot meet the 50% preponderance-of-the-evidence threshold for either claim. However, if the two claims are independent,¹ the plaintiff can show a 64% probability that the defendant committed either one tort or the other.² Yet courts do not permit this type of cross-claim factual aggregation.
For another example, this one involving claims arising from two distinct events, consider a plaintiff who can prove with 40% probability that the defendant engaged in a material breach of a contract, and also can prove with 40% probability that the defendant engaged in fraudulent misrepresentation to induce the creation of the contract. Under either theory, the plaintiff would be entitled to rescission of the contract. Yet again, although the probability that at least one claim is valid is 64% (assuming that the claims are independent), the plaintiff would lose, because courts do not permit cross-claim factual aggregation.
A second type of factual aggregation, which we will call cross-element factual aggregation, occurs across the elements that make up a single claim. For example, a negligence claim has elements of fault and causation, each of which the plaintiff must prove to establish liability. Say the plaintiff can prove each with 60% probability. If the probabilities of the two elements are not aggregated, the plaintiff wins, because the probability of each element being valid is higher than 50%, and so the plaintiff has established all requisite elements of her claim. But if the probabilities of the elements are aggregated, the plaintiff loses, because the probability that the defendant was at fault and caused the harm is only 36%.³ There is uncertainty about whether and to what extent courts engage in cross-element factual aggregation .
A third type of factual aggregation, which we call within-element factual aggregation, occurs when the plaintiff proposes several alternative factual theories that satisfy a single element of a claim. Say, for example, that the plaintiff suing for negligence has two distinct theories for why the defendant was at fault, and she can prove that each theory is true with 40% probability. If the probabilities of the two theories are not aggregated, the plaintiff will fail to establish the element of fault by preponderance of the evidence. If the probabilities are aggregated, however, the plaintiff will successfully establish fault, because the probability that one theory or the other is true is 64%. Unlike cross-claim factual aggregation, within-element factual aggregation is routine in American jurisprudence.
Aggregation does not always require uncertainty. Suppose that a plaintiff can show with certainty that the defendant induced the creation of a contract with misleading remarks that fall just short of fraudulent misrepresentation, and that the defendant subsequently engaged in a breach that falls just short of material. A court would typically not grant rescission, but not because the plaintiff failed to establish facts with sufficient probability. The plaintiff would lose because, for each claim, she failed to allege sufficient wrongdoing. Yet one could argue that—even if each is insufficient standing alone—the two bad acts together justify rescission.
We will call this type of aggregation normative aggregation. Like factual aggregation, it has cross-claim, cross-element, and within-element variations. Combining the independently insufficient claims for fraudulent misrepresentation and material breach described above, for example, would entail cross-claim normative aggregation. The normative weights of the two claims, neither of which standing alone is sufficient to establish liability, would be aggregated, and the combined weight of the two claims would establish liability.
Although courts do not usually permit this type of aggregation, such aggregation does occur in one important class of cases. When a neutral and generally applicable statute burdens religious exercise alone, it does not violate the First Amendment. But if the law simultaneously burdens another constitutional right, such as the right to free speech—even if that burden is not sufficient to violate that constitutional right independently—the law may nonetheless be overturned because of the aggregate burden it imposes on two constitutional rights.⁴
One can also imagine cases that share aspects of cross-claim factual aggregation and cross-claim normative aggregation. Suppose that the plaintiff can prove material breach with 40% probability, and can prove with certainty that the defendant induced the creation of the contract with misleading remarks that fall just short of fraudulent misrepresentation. One might argue that the plaintiff should be entitled to rescind the contract, but courts do not permit this type of cross-claim mixed aggregation.
Another type of aggregation takes place across persons. Suppose that a firm pollutes the air, and ten nearby residents claim that they were injured by the pollution. Each resident can show that she breathed in the pollution and that her medical condition deteriorated after the pollution, but all residents suffer from preexisting respiratory ailments, and thus cannot show with probability above 50% that the pollution, rather than their preexisting conditions, caused their harm. They would therefore lose their cases. Yet if each resident could show that the probability that the pollution exacerbated her medical condition is, say, 10%, then the residents can collectively prove that the probability that at least one of them was injured was greater than 50%, and therefore that the firm should pay damages⁵ (although not necessarily everyone’s damages—an issue we will address later). We will call this type of aggregation cross-person aggregation. Cross-person aggregation could be factual, as in the preceding example, but could also be normative or mixed.⁶
These examples illustrate an important vulnerability at the heart of the law. They reflect the fact that law relies on legal categories that organize the judicial treatment of disputes. These categories operate at different levels of generality, including bodies of law (tort, contract), claims (strict liability, negligence), and elements (offer, acceptance, breach, harm). These categories are important, and it is hard to imagine how the law would work without them. But they also require courts to disregard information that is relevant to an overall evaluation of the asserted wrongdoing.
This happens in the ways we have illustrated. First, where two claims concern a single act by the defendant, some of the factual information that is relevant for evaluating the defendant’s wrongdoing may need to be disregarded when one claim is evaluated, and other factual information disregarded when the other claim is evaluated. An act that is not clearly a strict liability tort and at the same time not clearly a negligence tort may nonetheless clearly be one or the other (assuming that the strict liability and negligence claims are at least partially independent) and thus a wrongful act that should entitle the victim to a remedy. A similar phenomenon transpires when the two (or more) claims relate to two (or more) events, and each event is considered separately, isolated from one another. Even if—for each event standing alone—the plaintiff cannot establish that the defendant caused the harm, the plaintiff may nonetheless be able to establish that the defendant caused the harm in at least one of the events. Conversely, even if in each event standing alone the plaintiff can establish that the defendant caused one harm, he may not be able to establish that the defendant caused both harms. In this way, as we explore further below, aggregation can lead to less liability in some cases.
Second, the law relies heavily on thresholds even when wrongdoing is typically a continuous variable.⁷ A plaintiff must reach one normative threshold along the continuum of increasingly severe wrongdoing to show fraudulent misrepresentation and another normative threshold to show material breach. But where an event falls just short of the thresholds in two separate legal dimensions, or two events individually fall short of the threshold, the threshold may be exceeded when those dimensions, or events, are aggregated. The defendant who does not quite engage in fraudulent misrepresentation and does not quite engage in material breach may nonetheless have acted wrongfully in her overall treatment of the plaintiff. Conversely, a criminal defendant prosecuted for assault who falls just short of the thresholds for both the insanity defense and a claim of self-defense may not be blameworthy enough to justify conviction.
Third, the law generally treats individuals as the unit of analysis, even though wrongdoing can often be probabilistic, in a sense transcending individuals. The point is not just that a firm that causes a small amount of harm to a large number of people may escape liability because no individual possesses a sufficient incentive to bring suit. This is a familiar problem, one that is addressed by the class action system. The problem is that even if each individual faced zero legal costs, she would lose her case. The probability that she was harmed is low or, alternatively, does not quite reach the normative threshold for each individual, but across many persons, that probability becomes significant.
Each of these cases bears a family resemblance to the others. They all stem from the problem of aggregating two types of things: factual information and normative weight. In the bulk of this Article, we will examine additional examples of how such aggregation might take place in torts, contracts, criminal law, and public law. We will also identify actual instances of aggregation in several of those fields and provide some tentative proposals for reforming how courts incorporate aggregation. Our focus will be general explanations and proposals that apply to aggregation in all fields of law. We summarize our conclusions here.
All of the cases reflect a familiar rules/standards tradeoff. The law disaggregates in order to reduce decision costs for courts and other decisionmakers, including ordinary people and firms who want to obey the law. The basic breakdown of wrongdoing into bodies of law, and then those bodies of law into claims, and those claims into elements, brings a regimented clarity to the process of learning and applying the law. But the disaggregation of wrongdoing into a series of rules comes at a cost: morally relevant information is lost.
To some extent, the law already recognizes this problem. Certain doctrines permit courts in certain cases to re-aggregate disaggregated claims. We will discuss examples later, but for now a few such examples that might be cited are the alternative liability rule and market share liability doctrine in tort law, the unconscionability doctrine in contract law, and the hybrid rights doctrine for the Free Exercise Clause in constitutional law. These doctrines permit courts to aggregate claims that would otherwise be kept separate under more conventional types of legal analysis.
However, we will argue that, because of its failure to aggregate more broadly or consistently, the law falls short in many significant respects, some of them illustrated by our examples above. Our minimal goal is to propose re-aggregation doctrines
that permit courts to aggregate factual and normative claims where doing so does not create excessive confusion. We show that aggregation would often lead to more liability compared to nonaggregation, but occasionally the reverse is true and aggregation would lead to less liability. Our more ambitious goal is to suggest general parameters for the optimal level of aggregation in the law.
The Article proceeds as follows. Parts I through IV analyze the nonaggregation problem in tort law, contract law, criminal law, and public law, respectively. Part V discusses explanations and justifications for courts’ refusal to aggregate, offers a theory for analyzing aggregation problems in the law, and proposes methods of implementation. The Conclusion summarizes the discussion.⁸
I. TORT LAW
A. Factual Aggregation
Factual aggregation in tort law is common for determining whether the defendant committed a particular element of a claim, like fault or causation in a negligence claim. Take, for example, a case where a car parked at the curb by the defendant begins to roll downhill
and hits the plaintiff, and the reason for the car’s roll could be that the defendant either failed to set the brakes or failed to cut the wheels properly against the curb, or failed to put the car in parking gear.
It would be common practice for the court or jury to find that the defendant’s fault caused the accident even without knowing what the defendant’s faulty behavior was, as long as the aggregated probability that some faulty behavior of the defendant caused the harm is sufficiently high.⁹ In this way, courts allow what we call within-element factual aggregation for proving fault. Courts, however, do not engage in cross-claim factual aggregation. Consider the following example:
Example I.1. The Inherently Dangerous Vehicle. The defendant hit the plaintiff while driving. The plaintiff argues that the defendant is strictly liable because he was driving an inherently dangerous vehicle and, in the alternative, that the defendant caused the harm by his negligent driving. The plaintiff, however, cannot establish his claims by the preponderance of the evidence. Specifically, the plaintiff can only show that the probability of each claim is 40%.
Nonaggregation results in both claims being rejected. If the court deciding the case instead aggregates the two claims, and it determines that those claims are independent, it will impose liability on the defendant. The probability that the defendant wrongfully hit the plaintiff would be 64%, enough to satisfy the preponderance-of-the-evidence standard.¹⁰ Courts, however, do not aggregate in cases like Example I.1.¹¹ As a result, defendants escape liability even when the probability that they wrongfully harmed the plaintiff is greater than 50%, simply because the plaintiff cannot establish what exactly the wrong committed by the defendant was.
The next two examples represent a cross-claim factual aggregation relating to two separate events.
Example I.2. Injury in the Hospital: Two Events, One Injury. The plaintiff was admitted to the hospital while having a heart attack. Initially, the doctor at the emergency room misdiagnosed him and sent him home. When the plaintiff returned two days later, another doctor in the cardiology department allegedly gave him poor treatment. The plaintiff did not fully recover. He sues the hospital for vicarious liability, arguing that the two doctors were negligent, and that each doctor’s negligence is a but-for cause of his injury. The evidence before the court indicates that the probability that each of the doctors caused the harm negligently is only 40%.
In contrast to Example I.1, in Example I.2 there are two separate events occurring at different times and places, and the same defendant (the hospital) could be (vicariously) liable for their injurious effects. If the two claims relating to the two events are evaluated separately, liability should not be imposed. If instead the two claims are aggregated, the court should hold the defendant liable, as long as the events are independent, even though it cannot determine which of the two events was the wrongful one.
It seems that courts would not aggregate in cases represented by Example I.2. However, two special doctrines of tort liability arguably could allow aggregation in multiple-event, one-injury cases. First, courts have been willing to impose liability on hospitals and their employees when a plaintiff has established that he suffered harm from the negligence of one of the hospital’s employees, even if the identity of the specific employee who negligently caused the harm remained unknown. Courts have imposed liability in these cases under the doctrine of res ipsa loquitur.¹² Although these cases usually involve one event,¹³ the doctrine might conceivably apply to two events if a plaintiff could establish that he suffered harm from an unidentified employee’s negligence during one of those events.¹⁴
Second, courts might be willing to impose liability on hospitals and their employees under the alternative liability rule
from Summers v. Tice¹⁵ if a plaintiff could establish that those employees were each negligent, even if the plaintiff could not prove which employee’s negligence caused the harm at issue. Under the alternative liability rule, as first codified in the Restatement (Second) of Torts,¹⁶ and later in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm,¹⁷ when the plaintiff can establish that several defendants acted tortiously toward him, and that at least one of them caused his harm, each of the defendants bears the burden to show that it was not his tortious conduct that caused the harm. Although the alternative liability rule, like res ipsa loquitur, has traditionally been applied to cases of one event during which multiple defendants act simultaneously, its logic also seems to apply to multiple-event cases in which defendants act at different moments in time, as long as the tortious conduct of each defendant can be proven by the preponderance of the evidence. Both the Restatement (Second) and Restatement (Third) treat this interpretation of the alternative liability rule as viable.¹⁸
In the next example, despite similarities to Example I.2, courts would clearly avoid any aggregation.
Example I.3. Injury in the Hospital: Two Events, Two Injuries. Same facts as in Example I.2, except that it is alleged that each doctor negligently caused the plaintiff separate harm: the doctor in the emergency room allegedly caused him necrosis in his leg, and the doctor in the cardiology department allegedly injured his heart. The probability of each allegation is 40%.
With no aggregation, the hospital—as well as the two doctors—will bear no liability, even though the probability that the plaintiff suffered harm caused by wrongdoing for which the hospital is responsible is 64%. Aggregation, instead, would lead to the imposition of liability on the hospital if the events are independent. Indeed, analogizing from the alternative liability rule of Summers v. Tice, one could argue that if the plaintiff could show