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Unpublished Paper
Losers' Law: A Metatheory for Legal Disappointments
ExpressO (2012)
  • John Martinez


We are all losers at one time or another. If you're seated in economy class on an airplane, you can't use the business class toilet, even if it's just two steps in front of your seat. Instead, you have to run back to the back of the plane and use the economy class toilets. The operative rule prohibits a mere economy class passenger from exercising the much more convenient choice of using the business class toilet. You are understandably disappointed (and discomforted) that you can't use the more convenient business class toilet: you are a "loser" because your obtained outcome is worse than your desired outcome.

Other--far more serious--examples of "loser" situations abound: former slave owners lost the economic value of their slaves when slavery was abolished in the United States; white South Africans lost their privileged status after the end of apartheid; and European Union countries like Greece that overspent their budgets must deprive their citizens of a lifestyle financed by public overspending.

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.

A Metatheory for Losers

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.

Roadmap for this Article

Part I introduces the field of "Losers Research". It describes losers in various contexts, including airline toilets, abolition of slavery, the end of apartheid in South Africa, and the possible exit of Greece from the European Union. These various settings illustrate how losers' choices include not only illegality, voice and exit, but also "acceptance". Part I suggests that all social systems, including legal systems, are well advised to encourage people to rationally accept being losers because that helps to maintain the systems.

Part II starts the Losers Research inquiry by focusing on the American legal system. Part II describes how technological changes often destabilize the law, resulting in either change in law, (or the lack of change), which in turn results in legal disappointments. The Part suggests that we need a systematic approach for managing such disappointments.

Part III sets out several illustrative legal theories that create losers in our legal system. The Part describes the following conceptual categories: the civic duty rule, the emergency doctrine, the concept of "average reciprocity of advantage," and the public trust doctrine. The Part also describes the following common law categories: easements for private necessity, the American rule on non-recoverability of attorney fees by successful litigants, the sovereign acts doctrine, and other common law "no property" approaches. Part IV suggests that in order to critically evaluate legal theories that create "losers" in the American legal system, we first must consider the legal system from an "information systems" perspective.

Part V proposes a "Dynamic Cycle of Legal Change" as an information systems model for understanding the structure and operation of the American legal system as a whole. Part VI illustrates the operation of the Dynamic Cycle of Legal Change in several common law, legislative and direct democracy settings. These include settings of gender equality, fame as a property asset, palimony claims, crime victims bills of rights, same-sex marriage statutes, solar acts, and the California coastal protection initiative and subsequent statute.

Using the insights about the structure and operation of the legal system revealed by the Dynamic Cycle of Legal Change, Part VII sets out the proposed metatheory for protecting losers in the American legal system. The metatheory includes a utilitarian component, whereby institutions of legal creation and change should be reviewed to ensure that they adopt proactive, all-encompassing approaches for obtaining feedback from losers. The metatheory also includes a fairness component, whereby such institutions should be reviewed to ensure that losers are selected consistent with the principle of justice as equality, whereby all persons similarly situated are similarly treated. Part VII further suggests that the United States Supreme Court is the proper institution to administer the metatheory pursuant to the Due Process and Equal Protection provisions of the federal constitution. Finally, Part VII demonstrates application of the metatheory using the various loser settings discussed throughout the article, and concludes by considering potential remedies.

  • acceptance of loss by losers,
  • fairness,
  • maintenance of social systems
Publication Date
September 14, 2012
Citation Information
John Martinez. "Losers' Law: A Metatheory for Legal Disappointments" ExpressO (2012)
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