Legal Theory Blog: Martinez on Legal Disappointments

John Martinez (SJ Quinney College of Law) has posted Losers' Law: A Metatheory for Legal Disappointments on SSRN. Here is the abstract:

The American legal system generates losers every day. Our adversarial system of litigation practically guarantees that every lawsuit will produce a winner and a loser. When the legislature or the people directly through initiatives enact legislation that further restricts land use, landowners hoping for greater land development options are transformed into losers as well.

Losers can choose to voice their grievances, to exit the system, or to resort to illegal behavior. But once voice is exercised, and exit and illegality are rejected as viable choices, we want losers to select "acceptance" of their losses, because this helps to maintain the system. But although we want to encourage losers to choose acceptance, we also want to be fair about it.

No existing theory addresses both acceptance and fairness concerns. This article fills that gap by proposing a metatheory whereby the legal system encourages people to accept their losses while also ensuring that losers are treated fairly, according to the principle of justice as equality, under which all those similarly situated are similarly treated. The article suggests that the proposed metatheory should be implemented by the United States Supreme Court under the Due Process and Equal Protection provisions of the federal constitution.

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