Law and Proximity — An Interesting Interface

Adam J. Hirsch (William and Catherine VanDercreek Professor of Law, Florida State University College of Law) and Gregory Mitchell (Professor of Law & E. James Kelly, Jr.-Class of 1965 Research Professor, University of Virginia School of Law) have recently published their article entitled Law and Proximity, 2008 Ill. L. Rev. 557.

Here is the abstract of their article:

Perceptions of proximity matter to people. When they come close to getting something they want, or when they nearly avoid something that harms them, or nearly are harmed by something, people tend to react more strongly than when they miss getting the thing they want by a lot, or when a harm that befalls them was unavoidable, or when a potential harm never came close to occurring. This article explores these psychological phenomena and their implications for legal policy and process. The article begins by reviewing the existing literature on the psychology of proximity and proceeds to consider its implications for the law of torts and criminal law (i.e., harms), and for the regulation of lotteries and gambling law (i.e., goods). The article then turns to situations where legal process can itself raise perceptions of proximity—viz., near misses of legality. The article argues that lawmakers could mitigate the frustrations of near misses by structuring law, and issuing legal judgments, in a manner that avoids or obscures them. In particular, the article explores the implications of the psychology of proximity for the rules-standards debate and assesses the virtues of substantial compliance doctrines, a form of legal structure that has received insufficient attention in the course of the rules-standards debate. The article concludes that lawmakers should take the psychology of proximity into consideration when they make policy choices, but in so doing lawmakers need to bear in mind the potential functionality of that psychology. Near miss experiences can be painful but simultaneously educational, stirring behavioral adjustments in those who endure them.

Here is an example they use from an estate planning perspective:

If, let us say, a beneficiary whom a testator disinherits on the deathbed could sue the estate for damages based on emotional distress, freedom of testation would cease to exist in its robust form. A devastating reversal of fortune though it might (quite literally) be, the last-minute revocation of an inheritance results from the testator’s assertion of property rights. These rights find justification in economic and political theory, even though their exercise can cause frustration in others.