Law and Regret

Authors

Eric A. Posner, University of ChicagoFollow

Abstract

Professor Farnsworth's1 topic is what he calls the "law of regretted decisions," those laws "that apply when you change your mind and reverse a decision" (p. ix). One finds such laws across many doctrinal divisions. Contract law influences the decision to change one's mind about keeping a promise. Tort law influences the decision to change one's mind after starting to rescue another person. The law of wills influences the decision to change one's mind about the distribution of one's assets among heirs. Farnsworth believes there are general principles that underlie the law of regretted decisions. Although there are some "anomalies," Farnsworth hopes to "further the rationalization of legal concepts and the identification and eventual correction of their deficiencies" (p. ix). The rationalization of legal concepts appears to mean the identification of the common principles that underlie them and the revision of the legal concepts that violate those principles. What are these principles? Farnsworth identifies six: reliance, intention, dependence, public interest, anti-speculation, and repose. But only the first two play an important role in Farnsworth's argument. The dependence principle, which appears to refer to cases in which conduct (rather than promising) puts others in a vulnerable position, is summoned to explain why a person might be liable in tort for beginning but failing to complete a rescue, and why family law holds a stepfather liable for child support after divorce if he has cut off the child's relationship with the natural father (pp. 93-96). The public interest principle, which is apparently a principle of economizing judicial resources, is ushered in to explain a handful of rules of civil procedure that discourage parties from changing their arguments. The antispeculation principle is hauled out to explain why certain "elections" - by the victim of breach, to choose one remedy rather than another, or to terminate the contract, or by the victim of fraud to avoid the contract - are irreversible (p. 184). If they were not, the victim would in effect have a valuable option, but "there is a pronounced judicial distaste for allowing one party to speculate at the other's risk" (p. 184). And the repose principle is trotted out to explain why statutes of lirnitation bar claims even when there is no reliance on the claim holder's inaction (p. 194). These arguments may be reasonable, but they are peripheral, and unsurprising as well, so I will not focus on them.

Recommended Citation

Eric A. Posner, Law and Regret, 98 Mich. L. Rev. 1468 (2019).
Available at: https://repository.law.umich.edu/mlr/vol98/iss6/6