DIGITAL SYNAPSE EXCHANGE · LAW & ECONOMICS

United States law as a case study — companion to the French study

ABSTRACT

French law leaves the debt of reparation dormant until the victim comes to claim it. American law appeared to have solved that problem sixty years ago: the opt-out class action includes the absent, ignorant, silent victim by operation of law. I show here that the solution was applied to one half of the transaction only. The class member’s claim is extinguished automatically — barely one in ten thousand opts out — while his money is paid only if he files a form, which fewer than one in ten does. The release is portable; the payment remains quérable. From this asymmetry, and from three further American locks — the arbitration clause, the standing requirement, and immunity — I derive the conclusion of the whole study: the lock is conserved, only its seat changes.

Exergue — Three Verbs

The French study turned on three Latin verbs — quaerere (the creditor’s body moves), portare (the debtor’s body moves), mandare (nothing moves but the word: the order, the summons). American law has compressed all three into one, and it is a verb of paperwork: to file. The injured person is the claimant — defined, like the French demandeur, by the act of asking. The wrongdoer is the respondent — defined by waiting.

And yet American law knows perfectly well how to pay without being asked. Every State runs an unclaimed property program whose officials search for the owners of dormant accounts and return the money to people who never claimed it.¹ The technique of proactive restitution exists, is funded, and is administered at scale. It is simply reserved for a class of assets — not for the debts of those who caused harm.

I. The Proclamation

The principle is not in doubt here either. Whoever negligently or wilfully injures another owes compensation; one who is unjustly enriched at another’s expense owes restitution;² and — a rule the French Civil Code does not state so plainly — a seller who learns after the sale that his product is dangerous owes a duty to warn those to whom he sold it.³ The post-sale duty to warn is precisely the obligation whose absence I criticised in French law. It exists here.

Above it all stands the American counterpart of Article 16 of the Declaration of 1789. In Marbury v. Madison, Chief Justice Marshall grounded the whole edifice on the maxim that where there is a right there must be a remedy: a government of laws, he wrote, must furnish a remedy for the violation of a vested legal right.⁴ France measures itself by the guarantee of rights; America measures itself by the availability of the remedy. Both tests are stated in the founding text. Both are the test I shall apply.