Before and after: temporal anomalies in legal doctrine.

• Author: Katz, Leo
• Position: Preferences and Rational Choice: New Perspectives and Legal Implications

1. PERSPECTIVES ON WRONGDOING

   Wrongdoing often looks different before and after. To be exact, it often looks less serious in retrospect than it does in prospect. This Article means to explore this phenomenon, its manifestations, its reasons, and its implications.

   It will be convenient to divide wrongdoing into two components, the first being the defendant's misconduct and the second being the harm which that misconduct precipitates--the "liability part," as it were, and the "damage part." Each of these components is subject to such a before-and-after effect, although it looks a little different in each case, has somewhat different ramifications, and is traceable to somewhat different origins. Let us consider them in turn.

   Picture an assassin who has just fired a bullet at his target but has missed. Imagine he is about to fire a second bullet. Now suppose that before firing the second bullet, the would-be assassin turns to you and asks, "Having missed, suppose I try again, fire another bullet, and let us assume that contrary to my intention, I once again fail. How bad would that be?" In other words, he wants to know about the wickedness of this second attempt on his victim's life. Your answer, I take it, would be clear: his second attempt would be as bad as his first since there is nothing about it that materially differs from the first attempt. Now suppose he goes ahead and fires the second bullet, and once again misses. What has happened to his blameworthiness? Well, how much worse is it to have unsuccessfully fired two bullets at one's prey, as opposed to just one? Not very much, if at all. Under a criminal law which tries to tailor its punishment to the defendant's just deserts, we would not think the two-bullet assassin deserves twice the sentence of the one-bullet assassin. Indeed, we are likely to think that his sentence should not be any longer whatsoever. And therein lies the oddity. We ask ex ante how bad it would be to fire the second bullet, and the answer is, "Very bad. As bad as another criminal attempt." We then look ex post at how much the defendant's second action has in fact increased his blameworthiness, and the answer is that it has barely affected it at all.

   When examining a defendant's misconduct, we expect it to look the same, morally speaking, whether we look at it before he has engaged in it, while he is engaging in it, or after he has engaged in it. A killing, or an attempted killing, should look equally bad before the defendant has committed it, while he commits it, and after he has committed it. (1) We expect the defendant's blameworthiness to be independent of our temporal vantage point. To be sure, sometimes we know less about an event before it has happened than after--and therefore we might feel differently about it before and after. But that is not what is going on here. Admittedly too, we know that people are prone to an irrational hindsight bias that makes certain outcomes seem more inevitable ex post than they did ex ante, and might prompt them to judge the defendant's actions as negligent in hindsight when they would not do so in advance. (2) But that is not what is going on here either. (3) Something more mysterious is at work.

   Let's turn to the second of my before-and-after anomalies, the one relating to harm. We all understand that whatever misfortunes may befall someone, he will adjust. Psychology has confirmed what intuition has long suggested: one's level of contentment is pegged to a set point, as it were. (4) This set point will vary from person to person, with some people being naturally morose and others being naturally upbeat. (5) But it is not likely to be changed much by the vicissitudes of life. Our moods are a matter of homeostasis. Win a lottery and you may be momentarily delirious; lose your fortune in the stock market and you will be momentarily dejected. In the long run though, you will gravitate back to your set point, your natural, God-given, congenitally pegged level of happiness. (Give or take an antidepressant, an exceptional therapist, the right kind of ashram, or a particularly unhappy childhood.) That psychological phenomenon means that any calamity will in fact look more ominous ex ante than ex post, and it therefore raises an interesting puzzle for harmful conduct. It is most easily stated in connection with negligently inflicted harm, although it really applies to intentional harms as well. But for simplicity's sake, let me stick with negligent harm.

   Judgments of negligence (or its close cognate, recklessness) require us to make comparisons between the benefits and the risks engendered by a defendant's actions. As a first approximation, we find a defendant's risky action negligent if its risks outweigh its benefits. But how are we to assess the risks? Specifically, are we to assess them from an ex ante or an ex post point of view? Are we to think about the risked harm as the defendant's victim would think about it before the defendant has injured him, or as he would think about it afterwards? The balance between benefits and risks will of course look quite different depending on the perspective chosen; and so will our verdict on the issue of negligence. As things stand, the law pretty much sticks to the ex ante perspective when assessing whether someone has acted negligently, but things tend to change when assessing just how injurious the defendant's actions have in fact been. In determining the extent of tort damages or the severity of punishment due, we are much more prone to look at the harm from an ex post point of view. Perhaps equally important, when thinking about the harm outside of the legal context, we are likely to think of it from the ex post point of view. Is this a tolerable inconsistency? (6)

   I will begin by taking up this last problem and will then return to the first one.

2. HARM, BEFORE AND AFTER

   It will be very useful in understanding the harm problem if we ask what it is that tends to propel the victim of a mishap back to his original happiness set point. A good portion of the answer can be found by looking at some of the self-help literature designed to help depressed people adjust to a world they believe depresses them. (7) This literature of "cognitive self-therapy" is essentially premised on the idea that many people are depressed because their natural mechanism of self-re-equilibration is broken, and that they can be helped by teaching them to do self-consciously what undepressed people do automatically. As a result, this literature can be used to give us some guidance on how all people, from the naturally resilient to those still learning to be resilient, manage to regain their bearings after a setback.

   A good example of how this approach works can be found in the introduction to a renowned self-help book by David Burns, one of cognitive therapy's foremost practitioners. It is called The Feeling Good Handbook, and it opens with this recollection:

   Let me share an experience when my son, David Erik, was born.... He was born around 6:00 P.M. on October 13, 1976. While his birth was a normal one it was obvious that he was having difficulties breathing. He was bluer than a healthy baby should be and he was wheezing and gasping for air. The obstetrician reassured us that the problem didn't appear to be serious but explained that they were sending him to an incubator in the premature intensive-care unit as a precautionary measure because he wasn't getting enough oxygen into his blood. I panicked and thought, "God! He needs oxygen for his brain cells. What if he ends up with brain damage or is mentally retarded?" As I walked through the hospital corridors, frightening thoughts raced through my mind. I developed tunnel vision and I felt as if I were floating across the ceiling. I had fantasies of taking him to clinics for the rest of his life as he struggled with various handicaps. As the night wore on, I was flooded with wave after wave of panic and I felt like a nervous wreck. Then I asked myself: "Why don't you do what you tell your patients to do? Aren't you always suggesting that distorted thoughts--and not realistic ones--upset people? Why don't you write your negative thoughts down on a piece of paper and see if there's something illogical about them?" Then I told myself, "Oh, that wouldn't work because this problem is real! A silly paper and pencil exercise wouldn't do me any good at all!" Then I countered this with[,] "Why not try it as an experiment and find out?" The first thought I wrote down was[,] "Other people might think less of me if I have a mentally retarded son." I'm a little ashamed to admit that my own ego was already caught up with the accomplishments and intelligence of my own son. But that was how I was thinking! This is such a common trap. We're programmed to believe that if we're number one in athletics or scholastics or in our careers, then we're no longer "average" or "ordinary" but "special." Our children incorporate this value system as they grow up and their feelings of self-esteem get connected with how talented, successful, or popular they are. Once I wrote my negative thought down and thought about it, I began to see how distorted and unloving it was and I decided to look at it this way instead: "It's not very likely that people will evaluate me based on how intelligent my son is. They're more likely to evaluate me on what I do. Their feelings about me will depend more on how I treat them and how I feel about them than on my own or my son's success." The more I thought about it, the clearer it became that my own feelings of happiness and my love for my son didn't have to be connected with his intelligence or career at all. And then a rather sweet realization came to mind. It dawned on me that even if he was only average or below average, it didn't need to diminish the joy we would share by one iota. I thought of how wonderful it would be to be close to him and to do things...